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ELRCPartially AllowedNot stated in judgment (suit filed 12.9.2014)· [2015] KEELRC 383 (KLR)

Justine Aburi Okemwa v Sheikh Zayed Children Welfare Centre [2015] KEELRC 383 (KLR)

Employment and Labour Relations Court
23 October 2015
OMOnesmus Makau
1,003 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, employed as a general worker from January 2013, was dismissed on 31.7.2014 after a lawn mower he was operating broke down while cutting large grass. He sued for Ksh 472,500 in terminal dues and compensation for wrongful termination, alleging summary dismissal without fair hearing or reason. The respondent's defence alleged lawful dismissal for reckless damage to the mower, and asserted payment of one month's salary in lieu of notice, but neither the respondent nor her counsel attended the hearing fixed by consent. The court found the claimant's uncontroverted evidence established that he was never trained on the machine, never warned, and never accorded a hearing in the company of a fellow employee as required by section 41 of the Employment Act. Under section 45(2), the employer having failed to prove a valid and fair reason and fair procedure, the termination was unfair; it also prematurely ended a fixed-term contract due to expire on 31.12.2014. Damages were assessed as total earnings for the unexpired 5-month period (Ksh 75,000) plus pro rata leave pay of Ksh 12,250. The overtime, compensation and notice-pay claims were dismissed as already covered by the unexpired-contract damages or lacking particulars. Judgment was entered for the claimant for Ksh 87,250 plus costs and witnesses, and a certificate of service was ordered.

Key legal issues

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01

Whether termination was wrongful and unfair

Holding

Yes - the employer failed to prove a valid reason and fair procedure; uncontroverted claimant evidence showed no warning, no hearing, and no proof of recklessness

Reasoning

The termination letter alleged the claimant had been warned but no evidence of such warning was produced, and no evidence proved reckless use of the mower. The respondent called no witnesses to disprove Cw1's evidence that he was never invited to a hearing with a fellow employee of his choice. On a balance of probability the claimant discharged his burden under section 47(5). The termination also prematurely ended a fixed-term contract scheduled to end on 31.12.2014.

p. 2
02

Measure of damages for premature termination of fixed-term contract

Holding

Total earnings for the unexpired period - 5 months at Ksh 15,000 = Ksh 75,000, plus pro rata leave of Ksh 12,250

Reasoning

Applying the trite rule that damages for breach of a fixed contract equal the total earnings for the unexpired period, the court awarded 5 months' salary for the remaining contract term. Leave pay was computed at 1.75 days per month over 14 months, totalling 24.5 leave days, equalling Ksh 12,250.

p. 2

Legal principles established

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  • Under section 45(2) of the Employment Act, termination is unfair if the employer fails to prove valid and fair reason and fair procedure
  • Damages for breach of a fixed-term contract are the total earnings for the unexpired period of the contract
  • A fair hearing under section 41 entails explaining the reason for intended dismissal to the employee in the company of a fellow employee or union representative and allowing them to respond

Court orders

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  1. 1.Judgment entered for the claimant for the sum of Ksh 87,250
  2. 2.Claimant awarded costs and witnesses' costs
  3. 3.Claimant to be issued with a certificate of service

Authorities

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Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 41
  • Employment Actsection 47(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, section 45, 41, 47(5))

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, "Justine Aburi Okemwa v Sheikh Zayed Children Welfare Centre [2015] KEELRC 383 (KLR)", Case Analysis (2015). Not stated in judgment (suit filed 12.9.2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/383/eng@2015-10-23

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