Calisto Oduol v Sameer Africa Limited [2015] KEELRC 1179 (KLR)
The bottom line
#A Kenyan court awarded an employee over Kshs. 863,000 because his employer fired him without a hearing and without proving he did anything wrong.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid reasons to warrant dismissal of the Claimant
No valid reason existed; the tyre transfer was a system transfer authorised by the acting warehouse manager and permitted by the company's own rules, so the employer failed to prove valid grounds under Section 43.
The Claimant accepted making the system transfer but only after authorisation by warehouse manager Oscar Omenda, a fact not denied by the Respondent. The Respondent's own witness admitted the Claimant's role was limited to systems transfer and that standard procedure allowed requests by telephone or email. Since the employer could not prove reasons genuinely held at termination, the dismissal was unfair under sections 43 and 45 of the Employment Act.
Whether due process was followed before the dismissal
Due process was not followed; the Claimant was never given a hearing, contravening Section 41 of the Employment Act.
The Respondent's witness (RW1) admitted in evidence that no hearing was given to the Claimant and that there was no evidence the Claimant was served with a dismissal letter. Section 41 obliges an employer to explain reasons for termination and to hear and consider the employee's representations before dismissal for misconduct. The Claimant remained on suspension for almost a year without any disciplinary hearing.
Whether the Claimant is entitled to the remedies sought
Having found the dismissal unfair, the court awarded notice pay, accrued leave, gratuity, twelve months' general damages and a certificate of service.
Having found both substantive and procedural unfairness, the court exercised its remedial powers to compensate the Claimant: one month's salary in lieu of notice based on his salary of 45,400/=, 44 days' accrued leave valued at 76,565/=, gratuity for years served in unionisable terms of 196,297/=, and equivalent of twelve months' gross salary (544,800/=) as general damages for unfair termination, totalling 863,062/=.
Legal principles established
#- Under Section 43(1) of the Employment Act, the employer bears the burden of proving the reasons for termination, failing which the termination is deemed unfair under section 45.
- Before terminating an employee for misconduct, the employer must explain the reasons to the employee and hear and consider any representations by the employee and a representative of their choice (Section 41, Employment Act).
Court orders
#- 1.1 month salary in lieu of notice of Kshs. 45,400/= awarded to the Claimant
- 2.Leave earned up to 12th April 2012 (44 days) of Kshs. 76,565/= awarded
- 3.Gratuity for years served in unionisable terms of Kshs. 196,297/= awarded
- 4.General damages for unfair termination of 12 months x 45,400/=, being Kshs. 544,800/= awarded
- 5.Total award of Kshs. 863,062/= to the Claimant
- 6.Certificate of service to be issued to the Claimant
- 7.Costs to the Claimant
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act (Industrial Court first-instance jurisdiction; specific provision not cited in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Calisto Oduol v Sameer Africa Limited [2015] KEELRC 1179 (KLR)", Case Analysis (2015). Memorandum of Claim filed 29/6/2012 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1179/eng@2015-04-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.