Maurice Ouma Omollo v Gothic Investments Limited [2014] KEELRC 1173 (KLR)
The bottom line
#A Kenyan court ruled an employee's dismissal for alleged theft was unfair because the employer never gave him a hearing, awarding him over Kshs. 300,000.
What this practically means
#Executive summary
#Key legal issues
#Substantive and procedural fairness of the termination
The termination was unfair both substantively and procedurally: the employer did not prove the alleged theft and did not hear the Claimant before termination
The Respondent alleged habitual theft of wine bottles as the reason for dismissal but neither attended trial nor proved the allegation. Under sections 43 and 45 of the Employment Act, 2007, the employer must prove a valid and fair reason and fair procedure. Because allegations of theft are serious and criminal in nature, the Claimant should have been heard; no hearing having been conducted, the termination was unfair under section 45.
Entitlement to reinstatement
Reinstatement declined; specific performance of a contract of service is not merited in the circumstances
Although reinstatement is uniquely available to the Industrial Court under sections 49 and 50 of the Employment Act, section 49(4)(d) requires the court to respect the common law principle against specific performance of contracts of service save in exceptional cases. Following Muleya v COMESA, damages remain the generally accepted remedy, and the prayer for reinstatement was refused.
Quantum of compensation and the applicable salary
Compensation computed on the documented salary of Kshs. 40,000, not the alleged Kshs. 60,000; six months' compensation plus one month's notice pay and leave pay awarded
The Claimant asserted a salary of Kshs. 60,000 at termination but adduced no evidence showing how it rose from Kshs. 40,000 confirmed in November 2009. The court therefore adopted Kshs. 40,000. Leave pay was awarded for 10 completed months because the Respondent, having failed to appear, provided no leave records to prove leave had been taken. Salary for August was limited to 6 days since employment ended on 6th August 2010.
Legal principles established
#- An employer bears the burden of proving the reason for termination; failure to do so renders the termination unfair
- Serious allegations of a criminal nature as grounds for termination require that the employee be given an opportunity to defend himself; absent a hearing, the allegations are not proved
- Reinstatement is not available except in very exceptional circumstances; damages are the generally accepted remedy for breach of contract of service
Court orders
#- 1.Award of Kshs. 240,000 being 6 months' salary as compensation for unfair termination
- 2.Award of Kshs. 40,000 being one month's salary in lieu of notice
- 3.Award of Kshs. 23,333 being leave pay for 10 completed months of employment
- 4.Total award of Kshs. 303,333 with interest at court rates from the date of the award until payment in full
- 5.Respondent to issue the Claimant with a Certificate of Service
- 6.Costs of the case awarded to the Claimant
- Jurisdiction invoked
- Employment Act, 2007 (ss. 41, 43, 45, 49, 50); Industrial Court first-instance employment cause
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Maurice Ouma Omollo v Gothic Investments Limited [2014] KEELRC 1173 (KLR)", Case Analysis (2014). Cause No. 1245 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1173/eng@2014-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.