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ELRCPartially AllowedConsolidated claims filed 9.8.2012 and 10.8.2012· [2014] KEELRC 1410 (KLR)

Elijah Midigo Ochieng & 4 Others v Trustees, Kenya Lake Conference & S.D.A Church E.A. Ltd [2014] KEELRC 1410 (KLR)

Industrial Court (Employment and Labour Relations Court)
21 November 2014
HWHellen S. Wasilwa
2,220 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded five sacked pastors 12 months' salary each because their church employer could not prove the fraud and skipped proper disciplinary procedure.

What this practically means

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Executive summary

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Five pastors employed by the respondents, the Kenya Lake Conference of the Seventh Day Adventist Church, claimed their summary dismissals on 26.2.2012 were unlawful. The dismissal letters alleged fraud and misappropriation of church funds and referred to a written confession before the Executive Committee. The respondents maintained the claimants failed to bank collections and presented fake pay-in slips, admitted the embezzlement in writing, and were summarily dismissed in line with the Church Working Policy. The court framed four issues: validity of reasons, due process, unremitted statutory deductions, and remedies. On the first issue, although fake banking slips and bank statements suggested funds went missing, the respondents could not prove the claimants generated or signed the fake slips; the claimants denied them and the accountant was the one criminally charged. The written admissions were alleged to have been obtained under intimidation. On due process, the Church Working Policy contained no disciplinary procedure, so Section 41 of the Employment Act 2007 applied; the claimants were summoned by text messages and heard within a day without notice of the accusations, so due process was not followed and the termination was unfair and wrongful. On statutory deductions, the respondents proved NSSF deductions were made and remitted, so that prayer failed. The court awarded each claimant one month's salary in lieu of notice plus twelve months' salary as damages for unlawful termination, subject to statutory deductions, ordered certificates of service, and directed the respondents to bear the costs of the suit.

Key legal issues

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01

Validity of reasons for dismissal

Holding

The respondents failed to prove the alleged fraud/misappropriation as a valid reason for dismissal

Reasoning

Although the termination letters cited fraud and the respondents produced fake banking slips and bank statements, there was no proof that the fake slips were generated or signed by the claimants. The claimants denied the slips and the criminal charges arising from the same transactions were laid against the church accountant, not the claimants. The written admissions were said to have been written under intimidation and did not establish the fraud against the claimants.

p. 3
02

Due process before dismissal

Holding

Due process was not followed; dismissal was unfair and wrongful

Reasoning

The church Working Policy did not set out a disciplinary process, so the process under Section 41 of the Employment Act applied. The claimants were summoned by text messages, heard after one day, without notice of the accusations or time to respond. The minutes indicated they attended a meeting, which they denied. This fell far short of the explanation and representation requirements of Section 41.

p. 4
03

Unremitted statutory deductions

Holding

Claim not proved; claimants not entitled to this prayer

Reasoning

The claimants contended that NSSF deductions were made but not remitted. The respondents produced appendices demonstrating that deductions were made and remitted to the relevant agencies. On that evidence the court found the allegation of non-remittance unproved and declined the corresponding prayer.

p. 4
04

Remedies for unfair termination

Holding

Each claimant awarded one month salary in lieu of notice plus 12 months' salary as damages for unlawful termination

Reasoning

Having found the termination unfair both for lack of valid reason and lack of due process, the court awarded notice pay and the maximum equivalent of 12 months' salary as damages to each claimant, subject to statutory deductions, and ordered certificates of service.

p. 4

Legal principles established

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  • Under Section 43 of the Employment Act 2007, the employer bears the burden of proving the reasons for termination, failing which the termination is deemed unfair
  • Before termination on grounds of misconduct, the employer must explain the reasons to the employee and hear and consider the employee's representations as required by Section 41 of the Employment Act 2007
  • Action taken against an employee without following due process amounts to unfair and wrongful termination and is null and void

Court orders

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  1. 1.1st claimant (Elijah Midigo Ochieng) awarded Kshs 742,700.40 (1 month salary in lieu of notice Kshs 57,130.80 plus 12 months salary Kshs 685,569.60 as damages for unlawful termination)
  2. 2.2nd claimant (Wilson Oyugi Ajuoga) awarded Kshs 539,142.24 (1 month salary in lieu of notice Kshs 41,472.48 plus 12 months salary Kshs 497,669.76 as damages)
  3. 3.3rd claimant (Thomas Juma Oula) awarded Kshs 790,784.02 (1 month salary in lieu of notice Kshs 60,829.54 plus 12 months salary Kshs 729,954.48 as damages)
  4. 4.4th claimant (James Ngoche) awarded Kshs 750,585.94 (1 month salary in lieu of notice Kshs 57,737.38 plus 12 months salary Kshs 692,848.56 as damages)
  5. 5.5th claimant (Obuya Barnabas) awarded Kshs 225,160 (1 month salary in lieu of notice Kshs 17,320 plus 12 months salary Kshs 207,840 as damages)
  6. 6.All payments to be subject to statutory deductions
  7. 7.Each claimant to be issued with a certificate of service

Authorities

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Legislation

  • Employment Act 2007Section 43(1) and (2)
  • Employment Act 2007Section 45
  • Employment Act 2007Section 41(1) and (2)
  • Employment Act 2007Section 42(1)
  • Employment Act 2007Section 44(3) and (4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims under the Employment Act 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Elijah Midigo Ochieng & 4 Others v Trustees, Kenya Lake Conference & S.D.A Church E.A. Ltd [2014] KEELRC 1410 (KLR)", Case Analysis (2014). Consolidated claims filed 9.8.2012 and 10.8.2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1410/eng@2014-11-21

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