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ELRCDismissedNot stated in excerpt· [2014] KEELRC 1270 (KLR)

Daniel Raiti Ogeto v College Management Board Acting For Elgon View College Board [2014] KEELRC 1270 (KLR)

Employment and Labour Relations Court
19 September 2014
BOByram Ongaya
932 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, a lecturer employed by the respondent from July 2012 to May 2013, sued in person seeking reinstatement or, in the alternative, Kshs.1,153,895.04 comprising days worked, accrued house allowance, annual leave, leave travel allowance, severance pay, notice pay, 12 months' compensation for unfair termination and general damages, plus a monthly salary from the termination date, a certificate of service and costs. The respondent denied the claim. The court found it undisputed that the claimant was employed as a lecturer and had been absent without leave in January to April 2013 and again from 10.05.2013. On the first issue - whether the termination was unfair - the court held the respondent had a valid reason under section 43 of the Employment Act, 2007, given the claimant's notorious absenteeism. Although the termination letter and show cause letter were served simultaneously, the lengthy hearing before the respondent's chairman on 15.05.2013 cured any procedural defect and satisfied section 41's hearing requirement. The termination was therefore not unfair. On remedies, the court held that reinstatement and compensation were unavailable; leave had not accrued because the claimant served under 12 months (section 28(1)); pay was consolidated inclusive of rent, defeating the house allowance claim; and no justification was established for the remaining prayers. The claimant was held entitled only to a certificate of service under section 51. Judgment was entered for the respondent to deliver the certificate within 7 days, with each party bearing its own costs.

Key legal issues

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01

Whether the termination was unfair

Holding

The termination was not unfair: the respondent had a valid reason (notorious absenteeism) and a hearing on 15.05.2013 satisfied section 41

Reasoning

The court found the claimant notoriously absent without permission in several months of 2013, including 14.05.2013, establishing a valid reason under section 43. Although the termination letter and show cause letter were served simultaneously on 15.05.2013, the lengthy hearing and discussion with the respondent's chairman that day cured any procedural defect, satisfying the hearing requirement of section 41.

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02

Entitlement to remedies

Holding

Only the certificate of service was awarded; reinstatement, compensation, leave, house allowance and other monetary claims failed

Reasoning

Because the termination was fair, reinstatement and compensation were unavailable. The claimant had served under 12 months so leave had not accrued; pay was consolidated inclusive of rent so house allowance failed; and no justification was established for the remaining prayers. Section 51 entitled the claimant to a certificate of service.

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Legal principles established

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  • A post-termination hearing between the employee and the employer can cure procedural defects that would otherwise render a termination procedurally improper under section 41 of the Employment Act
  • A valid reason for termination exists under section 43 where the employee is absent from work without permission
  • Leave does not accrue to an employee who has served less than 12 months under section 28(1) of the Employment Act

Court orders

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  1. 1.Judgment entered for the respondent to deliver to the claimant the certificate of service within 7 days
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 43
  • Employment Act, 2007section 41
  • Employment Act, 2007section 28(1)
  • Employment Act, 2007section 51
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; claim for unfair termination)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Daniel Raiti Ogeto v College Management Board Acting For Elgon View College Board [2014] KEELRC 1270 (KLR)", Case Analysis (2014). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1270/eng@2014-09-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.