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ELRCPartially AllowedCause No 93 of 2013· [2015] KEELRC 1140 (KLR)

Enock Owino Onyuno v Majani Mingi Sisal Estate Ltd [2015] KEELRC 1140 (KLR)

Employment and Labour Relations Court
17 April 2015
RSRadido Stephen
1,476 words in judgment
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The bottom line

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A Kenyan court awarded a 20-year employee 12 months' salary after his employer dismissed him without a hearing, ruling that earlier warnings could not justify summary dismissal.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1992 and later serving as Electrical Department Head, was summarily dismissed by letter dated 28 September 2012. He sued for wrongful termination. At the outset, the Court expunged the Amended Statement of Claim filed on 10 January 2014 and the Amended Reply, because the only leave on record, granted on 31 May 2013, was for an Amended Memorandum of Claim to be filed by 7 June 2013; the amendment was out of time and without further leave. The Court proceeded on the initial pleadings and framed four issues: the capacities in which the Claimant served; whether he was terminated or deserted; whether the termination was unfair; and remedies. On the evidence, the Claimant's testimony that he was promoted in 2006 was uncontroverted, and pay slips showed a gross monthly wage of Kshs 32,090/- in May 2012. The Court found he was dismissed for absences without permission, not desertion, since desertion requires an intention not to report to work. The dismissal was procedurally unfair: the dismissing officer did not testify, no formal warning preceded the dismissal, and the Respondent could not show that any hearing took place or when. Prior absences had already been dealt with by warnings and could not justify the dismissal. Reinstatement was refused as mutual trust had broken down and the Claimant did not seek it. Applying section 49(4) of the Employment Act, the Court awarded maximum compensation of 12 months' gross wages, Kshs 385,080/-, based on 20 years of service. The Claimant was denied costs for late submissions; each party to bear own costs.

Key legal issues

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01

Whether the Claimant's separation from employment was termination or desertion

Holding

The Claimant was dismissed for the reasons in the summary dismissal letter (absences without permission), not desertion

Reasoning

The Respondent's witness joined after the separation and relied on records and Charles Kiget's statement. The dismissal letter itself cited absences without permission. Desertion requires an intention not to return to work, which the Respondent did not prove.

p. 2
02

Whether the summary dismissal was procedurally fair

Holding

The dismissal was procedurally unfair

Reasoning

The officer who dismissed the Claimant did not testify; no formal warning preceded the dismissal; the Respondent could not show who informed the Claimant of the allegations, who heard him, or when any hearing was held. Prior absences had already been dealt with by warnings and could not found the dismissal.

p. 3
03

Appropriate remedies for the unfair dismissal

Holding

Reinstatement declined; maximum 12 months' gross wages compensation of Kshs 385,080/- awarded based on the May 2012 gross wage

Reasoning

Mutual trust and confidence had broken down and the Claimant did not seek reinstatement. Section 49(4) factors, particularly 20 years of service, justified the maximum compensation calculated on the gross wage of Kshs 32,090/-.

p. 3
04

Status of the Amended Statement of Claim filed without valid leave

Holding

The Amended Statement of Claim and Amended Reply were expunged; the Court proceeded on the initial pleadings

Reasoning

The record showed leave was granted on 31 May 2013 only for an Amended Memorandum of Claim to be filed by 7 June 2013. The Amended Statement of Claim filed 10 January 2014 was outside that time and without further leave.

p. 1

Legal principles established

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  • Desertion requires proof of an intention not to report to work; mere absence from work without permission does not amount to desertion
  • Absences already dealt with by warnings cannot be relied on as valid reasons for a subsequent summary dismissal
  • An employer who dismisses without disclosing any hearing or who was present renders the dismissal procedurally unfair
  • Maximum compensation under section 49(4) of the Employment Act may be awarded considering length of service

Court orders

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  1. 1.The Amended Statement of Claim filed 10 January 2014 and the Amended Reply to Amended Statement of Claim were expunged from the record
  2. 2.Respondent to pay Claimant 12 months gross wages compensation of Kshs 385,080/- for procedurally unfair summary dismissal
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 49(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance labour dispute; specific enabling provision not cited)

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, "Enock Owino Onyuno v Majani Mingi Sisal Estate Ltd [2015] KEELRC 1140 (KLR)", Case Analysis (2015). Cause No 93 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1140/eng@2015-04-17

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