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ELRCPartially AllowedCause Number 558 of 2014· [2015] KEELRC 354 (KLR)

Omari Mwachikoko v Ashburton Grove Limited [2015] KEELRC 354 (KLR)

Industrial Court of Kenya
30 October 2015
JRJames Rika
1,302 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 ruled that even a valid reason for firing isn't enough — employers must still hear the employee out first.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 2003 to 2014 as a Site Operative on a monthly salary of Kshs. 13,200, claimed his contract was terminated on 9 March 2014 without reason, notice or hearing after he was accused of taking bitumen from a site. He sought one month's notice pay, twelve months' compensation for unfair termination, interest and costs. The respondent conceded the employment relationship and the termination but maintained the dismissal was fair, alleging through its Director, Michael John Bell, that the claimant deserted after persistent demands for payment of a loan balance and was repeatedly absent from work. Rika J found that the employer had conceded termination on the grounds of persistent demands for money and absenteeism, but had no proof of those grounds and never afforded the claimant a hearing as required under Sections 41, 43 and 45 of the Employment Act 2007. The court reasoned that a claimant told to 'go away' could not be held to have deserted, and that while absence without leave was a valid ground under Section 44(4), fair procedure had to precede termination. Holding that the claimant was denied both substantive and procedural justice, the court declared the termination unfair and awarded one month's notice pay and six months' salary as compensation, totalling Kshs. 94,400, payable within 21 days, with no order on costs and interest.

Key legal issues

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01

Whether termination was fair in substance and procedure

Holding

Termination was unfair - the employer had a valid ground (absenteeism) but denied the claimant a hearing

Reasoning

Although absence without leave could justify summary termination under Section 44(4), the employer never heard the claimant on either ground as required by Section 41. The claimant was told to 'go away' over money demands, which negated desertion. Both substantive and procedural justice were denied, warranting compensation though at a reduced quantum.

p. 3
02

Quantum of compensation

Holding

6 months' salary awarded as compensation plus 1 month notice pay

Reasoning

The court reduced the claimed 12 months' compensation to 6 months, taking into account that one of the grounds (absenteeism without leave) was itself a valid reason that could have justified termination had fair procedure been followed. Notice pay was conceded by the respondent.

p. 3

Legal principles established

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  • Sections 41, 43 and 45 of the Employment Act 2007 require the employer to demonstrate fair and valid grounds for termination, following a fair procedure including notifying the employee of the allegations and granting a hearing
  • Employees who fall ill must seek leave or at least communicate with their employers at the earliest opportunity

Court orders

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  1. 1.Declaration that termination was unfair
  2. 2.Respondent to pay within 21 days 1 month salary in lieu of notice at Kshs. 13,200
  3. 3.Respondent to pay 6 months' salary in compensation for unfair termination at Kshs. 79,200 (total Kshs. 94,400)
  4. 4.No order on the costs and interest

Authorities

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Legislation

  • Employment Act 2007Section 41
  • Employment Act 2007Section 43
  • Employment Act 2007Section 45
  • Employment Act 2007Section 44(4)
  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)
Jurisdiction invoked
Industrial Court (Procedure) Rules 2010, Rule 27(1)(a); dispute over unfair and unlawful termination

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, "Omari Mwachikoko v Ashburton Grove Limited [2015] KEELRC 354 (KLR)", Case Analysis (2015). Cause Number 558 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/354/eng@2015-10-30

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