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ELRCAllowedCause No. 1337 of 2010· [2015] KEELRC 188 (KLR)

Bethwel Hopkins Mukolowe Oriko v K.K. Security Company Limited [2015] KEELRC 188 (KLR)

Employment and Labour Relations Court of Kenya
8 October 2015
HWHellen S. Wasilwa
911 words in judgment
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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, employed as a Dog Handler by the Respondent security company from 1 November 2008, was arrested in May 2009 with two others and charged before the Kibera Court with stealing and, in the alternative, negligence causing theft. He was released on bond, reported back to work, and was suspended and told to report on 8 June 2009. The criminal case ended in his acquittal under Section 202 of the Criminal Procedure Code on 10 July 2010, but the Respondent never lifted the suspension, never traced his file, and never paid him during the suspension period. He sued claiming unlawful termination and terminal dues. The Respondent denied terminating him, maintaining that he remained its employee. The court framed three issues: whether the Claimant was terminated, whether due process was followed, and entitlement to remedies. On the first issue, the court inferred termination from the Respondent's inaction, its failure to respond to a demand notice dated 6 September 2010, and non-payment during suspension. On the second, it held there was no notice and no hearing as required by Section 41 of the Employment Act, rendering the termination unlawful and unfair under Section 45. The court awarded one month's salary in lieu of notice, May 2009 salary, salary for the suspension period, prorated service pay for two years, and twelve months' compensation, totalling Kshs. 178,824, plus costs and interest. Judgment was read in open court on 8 October 2015 by Hellen S. Wasilwa J.

Key legal issues

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01

Whether the Claimant was terminated by the Respondent

Holding

The court inferred that the Claimant was contractually terminated during suspension, based on the Respondent's failure to lift the suspension, non-payment during suspension, and failure to reply to the demand notice.

Reasoning

The only communication to the Claimant was the suspension letter; no letter lifting the suspension was issued and no salary was paid during suspension. When the Claimant's advocate sent a demand notice, the Respondent did not reply, missing the opportunity to deny termination. The court held the Respondent's assertion that the Claimant remained its employee did not hold and rejected it.

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02

Whether due process was followed in the termination

Holding

No due process was followed; the Claimant received neither notice nor a hearing, contrary to Section 41 of the Employment Act.

Reasoning

Section 41 of the Employment Act obliges an employer, before terminating on grounds of misconduct, to explain the reasons to the employee and to hear and consider any representations. The Claimant was suspended and then treated as dismissed without being given any opportunity to explain himself. The termination was therefore both procedurally and substantively unfair under Sections 41 and 45 of the Employment Act, 2007.

p. 2

Legal principles established

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  • An employer's unexplained inaction and failure to respond to a demand notice after a suspension, coupled with non-payment during suspension, permits an inference that the employee was terminated.
  • Termination without notice and without a hearing as required under Section 41 of the Employment Act is unlawful and unfair under Section 45.

Court orders

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  1. 1.1 month's salary in lieu of notice of Kshs. 7,451
  2. 2.Salary for May 2009 of Kshs. 7,451
  3. 3.Salary not paid during suspension from June 2009 to July 2010 (9 months x Kshs. 7,451) of Kshs. 67,059
  4. 4.Prorated service pay for 2 years (15 days x 2 years) of Kshs. 7,451
  5. 5.12 months' salary compensation for unlawful termination of Kshs. 89,412
  6. 6.Total award of Kshs. 178,824 plus costs and interest

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 45
  • Criminal Procedure CodeSection 202
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction 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, "Bethwel Hopkins Mukolowe Oriko v K.K. Security Company Limited [2015] KEELRC 188 (KLR)", Case Analysis (2015). Cause No. 1337 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/188/eng@2015-10-08

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