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Case Brief · caselaw.co.ke
ELRCPartially AllowedMemorandum of Claim dated 5th September 2011, filed 8th September 2011 (Industrial Court/ELRC)

Fredrick Wandera Orubia v Nairobi Aviation College [2014] KEELRC 1487 (KLR)

Industrial Court (Employment and Labour Relations Court)
17 December 2014
1,550 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employer unfairly sacked a sick worker without a termination letter, awarding him 12 months' salary plus terminal dues.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a messenger from January 2007 at a last salary of Kshs.10,200/=, claimed unfair termination and terminal dues after an injury at work on 30th August 2010 led to sick leave, hospitalisation at Coptic Hospital, and an operation at Moi Teaching and Referral Hospital funded after he sold his shamba. He reported back to work on 15th April 2011 but was sent home to await a recall that never came; his salary had been stopped in December 2010 and no termination letter was issued. The Respondent pleaded dismissal for absconding duty and abusive language, but its two witnesses made no reference to dismissal and confirmed the absence was due to sickness. The court, per Maureen Onyango J, found the termination was due to ill health and was unfair, rejecting the pleaded grounds. The Claimant was awarded leave pay of Kshs.28,560/= (84 days under section 28), one month's notice pay of Kshs.10,200/= under section 49(1)(a), service pay of Kshs.20,400/= at 15 days per year under section 35(5) (no evidence of NSSF membership), and 12 months' salary compensation of Kshs.122,400/= under section 49(1)(c), after considering the section 49(4) factors. The decretal sum attracts interest at court rates from the date of judgment, and the Claimant received costs. The claim thus partially succeeded, with the awards differing from the amounts claimed. A separate magistrate's court suit for compensation for the work injury was noted as pending.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant was unfairly dismissed from employment
  2. 2.Whether the Claimant is entitled to the reliefs sought

Key legal issues

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01

Whether the Claimant was unfairly terminated

Holding

Termination was due to ill health and was unfair; the defence of absconding and abusive language was not supported by the Respondent's witnesses

Reasoning

The Respondent pleaded dismissal for absconding duty and abusive language, but both its witnesses confirmed the Claimant was away due to sickness and reported back with a walking stick, and made no reference to dismissal. Salary was stopped while on sick leave, no termination letter was issued, and the promised recall never came. The court therefore found the termination unfair.

p. 3
02

Entitlement to remedies under the Employment Act

Holding

Claimant awarded leave pay for 84 days, one month's notice pay, service pay at 15 days per year under section 35(5), and 12 months' salary compensation under section 49(1)(c)

Reasoning

Leave entitlement was uncontested and computed at 21 days per year under section 28. Having found unfair termination, notice pay under section 49(1)(a) followed. Absence of evidence of NSSF registration entitled him to service pay under section 35(5). Compensation of 12 months' salary was granted after considering section 49(4) factors, the circumstances of termination and length of service.

p. 3

Legal principles established

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  • Burden of proving unfair termination rests on the employee, while the burden of justifying grounds for termination rests on the employer (section 47(5) Employment Act)
  • Termination during sick leave without a termination letter, with stopped salary and unfulfilled promises to recall, is unfair

Court orders

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  1. 1.Payment in lieu of untaken leave for 84 days being Kshs.28,560/= awarded
  2. 2.One month's salary in lieu of notice of Kshs.10,200/= awarded
  3. 3.Service pay at 15 days per year worked, Kshs.20,400/= awarded
  4. 4.Compensation of 12 months' salary in the sum of Kshs.122,400/= awarded
  5. 5.Decretal sum to attract interest at court rates from date of judgment
  6. 6.Claimant awarded costs of the case

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, sections 28, 35(5), 47(5), 49); claim of unfair termination and terminal dues

Relief refused

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Leave pay for 4 years as computed by the Claimant (Kshs.40,800/=)

Leave is provided at 21 days per year worked; awarded at 84 days, not the amount claimed

p. 3

Service gratuity as claimed (Kshs.24,480/= at 18 days per year)

Awarded as service pay under section 35(5) at 15 days per year, i.e. Kshs.20,400/=

p. 3

Costs

The Claimant shall also have costs of this case.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I find that the termination of the Claimant’s employment was due to ill health and not absconding duty or use of abusive language as alleged in the Response to the Memorandum of Claim.
p. 3Termination due to ill health; rejection of pleaded grounds of dismissal
He was not issued with a letter of termination. The termination was therefore unfair.
p. 3Absence of termination letter; unfairness
The decretal sum shall attract interest at court rates from date of judgment.
p. 3Interest
The Claimant shall also have costs of this case.
p. 4Costs

Issues in the judgment

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minor

The witness David Owuor is described in the judgment both as a data clerk and as the Assistant Administrator Robert Owuor sent to the Claimant, raising possible inconsistency in the identity of the Respondent's witnesses

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, "Fredrick Wandera Orubia v Nairobi Aviation College [2014] KEELRC 1487 (KLR)", Case Analysis (2014). Memorandum of Claim dated 5th September 2011, filed 8th September 2011 (Industrial Court/ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1487/eng@2014-12-17

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