Jacob Okal Odero v Kenya Institute Of Management Ltd [2013] KEELRC 970 (KLR)
The bottom line
#A Kenyan court awarded a manager 12 months' salary after finding his dismissal followed an unfair process, not just a bad decision.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the claimant's employment was procedurally fair
The termination was procedurally unfair: the claimant was suspended without being asked to explain, was condemned in advance by the wording of the disciplinary letter, was summoned by telephone without being informed of the charges or of his right to be accompanied, and his accuser sat on the deciding panel.
The court examined the Human Resources Policies and Procedures Manual and found no provision for suspension, and noted suspension was unknown to employment legislation. The disciplinary letter's wording showed the claimant had already been condemned before the process began. There was no record the claimant was told the charges or of his right to be accompanied under section 41 of the Employment Act. His accuser sat on the panel and no explanation was given for preferring that version. The charges at the hearing also differed from the suspension letter's reasons.
Whether the termination was substantively fair
The termination was substantively unfair: there was no valid offence of 'expression of unwillingness' to work, the Executive Director unlawfully enhanced the disciplinary committee's recommendation of a warning to termination, and undisclosed 'past behaviour' was relied upon.
The court found no offence known as 'expression of unwillingness' to work in the Respondent's manual; a person is guilty only of failing to work, not merely expressing an unwillingness. The disciplinary committee had recommended a warning, but the Executive Director, whose powers under the manual extended only to determining appeals, enhanced the punishment to termination, effectively sitting on appeal against his own decision. The termination letter also relied on undisclosed past behaviour (the 2008 transfer protests and alleged misappropriation) which had been conclusively dealt with without punishment.
Whether the claimant was entitled to compensation of 12 months' salary
Yes - the court awarded maximum compensation of Kshs.1,364,400 being 12 months' gross salary under section 49(1)(c) of the Employment Act.
Having found the termination unfair, the court held the claimant entitled to compensation under section 49(1)(c). In exercising the discretion, the court considered the factors in section 49(4), specifically the claimant's length of service, the circumstances of termination, his reasonable expectations and the terminal benefits payable, and concluded that maximum compensation was reasonable.
Whether the claimant was entitled to terminal dues admitted by the respondent
Yes - the court awarded Kshs.479,335.71 being three months' notice pay, 35 days' leave pay and 8 days worked in February, plus a certificate of service.
The respondent had offered in the termination letter to pay salary for days worked, three months' salary in lieu of notice, leave days earned and pension, and offered a certificate of service in its response and through RW2's testimony. The claimant had admitted being offered and having refused these amounts, and the court awarded the admitted sum of Kshs.479,335.71.
Whether the claimant was entitled to gratuity and damages
No - both claims were dismissed for lack of specificity and proof of legal basis.
The claimant prayed for gratuity but did not specify the amount claimed or the legal basis for it, so no case for gratuity was made out. Similarly, the prayer for damages was unsupported by any specified amount or legal justification, and the court found the prayer unproved and dismissed it.
Legal principles established
#- Suspension of an employee must be provided for in the employment contract, applicable policies or legislation; an unregulated suspension preceding disciplinary action may indicate a flawed process
- An employee must be informed of the charges against him before a disciplinary hearing and of the right to be accompanied, per section 41 of the Employment Act
- An accuser who sits as a member of the disciplinary panel that decides the case prejudices the fairness of the hearing, and the employer must explain why the accuser's version was preferred
- The authority to determine appeals from a disciplinary committee does not confer power on an executive to enhance the committee's recommended punishment
- Termination founded on undisclosed 'past behaviour' never raised at the disciplinary hearing is unfair
- Unfair termination attracts compensation under section 49(1)(c) of the Employment Act, with the section 49(4) factors applied, up to a maximum of 12 months' gross salary
Court orders
#- 1.A declaration that the termination of the Claimant's employment contract was unfair
- 2.Payment of Kshs.1,843,735.71 (comprising admitted terminal dues of Kshs.479,335.71 and 12 months' gross salary compensation of Kshs.1,364,400)
- 3.Certificate of service to be issued to the claimant
- 4.Costs of the case to the claimant, to be taxed by the Registrar
- 5.Interest payable at court rates on the decretal sum if not paid within 30 days from the date of judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act); case originally partly heard by Hon. Justice E.K. Mukunya and heard denovo upon reallocation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jacob Okal Odero v Kenya Institute Of Management Ltd [2013] KEELRC 970 (KLR)", Case Analysis (2013). Memorandum of Claim dated 17th October 2011, filed 19th October 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/970/eng@2013-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.