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ELRCPartially AllowedCause Number 468 of 2014· [2015] KEELRC 700 (KLR)

Charles Odongo Gumba v Habo Group of companies Limited [2015] KEELRC 700 (KLR)

Industrial Court of Kenya
31 July 2015
JRJames Rika
809 words in judgment
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The bottom line

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A Kenyan employer who fired an injured worker without notice or reason was ordered to pay over Kshs. 156,000 — employers must prove any dismissal was fair.

What this practically means

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Executive summary

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The Claimant, a Turn Boy employed by the Respondent at a monthly salary of Kshs. 10,000 (formally appointed by letter dated 18th May 2012, having worked from 2010 initially at Kshs. 6,500), sued for unfair and unlawful termination of his contract in April 2014. He claimed notice pay, salary arrears for March 2014, accrued annual leave, twelve months' compensation, and an investigation into alleged underpayment of wages, totalling Kshs. 170,000 plus costs. The Respondent was served but neither appeared nor filed a response. The Claimant testified that he was involved in a road traffic accident on 18th July 2013 in the course of his work on the Mombasa-Kampala Highway, was hospitalized and treated, and was still on medication when he was dismissed without notice or reason, being told only 'Kazi hakuna' (no work). Rika J found the Claimant's unchallenged evidence established that he was dismissed because his workplace injury was thought to diminish his productivity. Sections 41, 43 and 45 of the Employment Act 2007 require the employer to prove valid reasons for termination and a fair procedure, obligations the absent Respondent failed to meet. The Court declared the termination unfair and unlawful, awarding twelve months' salary (Kshs. 120,000), March 2014 salary (Kshs. 10,000), accrued annual leave of 42 days at Kshs. 384 per day (Kshs. 16,153), and one month's notice pay (Kshs. 10,000), totalling Kshs. 156,153, payable within 30 days, with costs to the Claimant. The prayer for an investigation into alleged wage underpayment was refused for lack of evidence. Judgment delivered at Mombasa on 31st July 2015.

Key legal issues

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01

Whether termination was unfair and unlawful where the Respondent did not appear or file a response

Holding

Termination was unfair and unlawful; the unchallenged evidence of dismissal without notice or reason stands

Reasoning

Sections 41, 43 and 45 of the Employment Act place the burden on the employer to justify termination. By staying away from proceedings, the Respondent failed to meet those obligations. The Claimant's unchallenged evidence that he was dismissed while still on medication for a workplace injury, seemingly because his injury diminished his productivity, established his case and entitled him to remedial action.

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02

Entitlement to annual leave

Holding

Annual leave granted for 42 days (21 days per year) at Kshs. 384 per day, amounting to Kshs. 16,153

Reasoning

The Claimant claimed accrued annual leave for two years. The Court quantified it at 21 days per year over two years at a daily rate of Kshs. 384, based on his monthly salary of Kshs. 10,000, awarding Kshs. 16,153 as accrued annual leave pay.

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Legal principles established

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  • Sections 41, 43 and 45 of the Employment Act require the employer to prove the reason for termination, its validity, and that a fair procedure was followed

Court orders

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  1. 1.Declaration that termination of the Claimant's contract of employment was unfair and unlawful
  2. 2.Respondent to pay within 30 days: 12 months' salary in compensation at Kshs. 120,000; salary for March 2014 at Kshs. 10,000; accrued annual leave at Kshs. 16,153; and 1 month salary in lieu of notice at Kshs. 10,000 - total Kshs. 156,153
  3. 3.Costs to the Claimant

Authorities

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Legislation

  • Employment ActSections 41, 43, 45
  • Industrial Court (Procedure) RulesRule 27(1)(a)
Jurisdiction invoked
Industrial Court (Procedure) Rules 2010, Rule 27(1)(a); 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, "Charles Odongo Gumba v Habo Group of companies Limited [2015] KEELRC 700 (KLR)", Case Analysis (2015). Cause Number 468 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/700/eng@2015-07-31

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