Peter Apollo Ochieng v Amedo Centre Kenya Limited [2016] KEELRC 1217 (KLR)
The bottom line
#A Kenyan employer lost even with strong evidence of employee misconduct because it skipped the mandatory fair hearing steps before termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant was lawful and procedurally fair
The termination was procedurally unfair because the Respondent failed to adhere to section 41 of the Employment Act - no notice of the hearing, no written proceedings, and no representative for the Claimant.
The court found that the Claimant was summoned abruptly to a meeting at head office on 13th August 2009, confronted with allegations of which he had no prior notice, and pressured to resign. There were no minutes of the meeting. Section 41 requires notification of allegations, a hearing in the presence of a fellow employee or representative, and written proceedings. Without these, the termination became procedurally unfair even though some admitted conduct warranted summary dismissal.
Whether the Respondent had valid reasons for termination under sections 43 and 45 of the Employment Act
Some allegations admitted by the Claimant were grave and warranted summary dismissal, but the Respondent instead terminated on grounds that had to satisfy both valid reason and fair procedure requirements.
The court examined all 14 allegations, noting the Claimant admitted reallocating budgets for lunch, reverting 11 IDP accounts, and maintaining accounts for departed sales agents. The matters were serious, some bordering on criminal conduct, and warranted summary dismissal. However, since the Respondent chose termination rather than summary dismissal, both valid reason (section 45(2)) and fair procedure (section 41) had to be met, and procedure was not followed.
What remedies flow from the finding of unfair termination
The Claimant was awarded notice pay of 3 months, compensation of 3 months' pay, confirmed leave days, and salary dues, but not service pay due to NSSF/NHIF deductions.
The letter of termination entitled the Claimant to salary for August 2009 and 66 leave days, which the Respondent admitted. With no evidence of a termination notice, payment in lieu was due - 3 months at Kshs.18,400. Compensation was limited to 3 months' pay considering the Claimant's prior warning letter at the Narok Branch under section 45(5)(e). Service pay was barred by section 35(5) and (6) given statutory deductions.
Whether the Respondent's counter-claim of Kshs.308,762.00 should be allowed
The counter-claim was dismissed.
The unfair hearing process deprived the Claimant of an opportunity to effectively defend against the allegations underpinning the counter-claim. Further, the defence documents were mere unexplained extracts, including two strange pages between pages 17 and 18, and the audit report extract was unsigned, leading the court to infer the omitted parts were unfavourable to the Respondent. This fatally undermined the defence and counter-claim. The court also noted provident fund issues under the Retirement Benefits Act should go to the RBA tribunal.
Legal principles established
#- Section 41 of the Employment Act imposes mandatory procedural requirements before termination: notification of allegations, a hearing, and the presence of a fellow employee or representative of the employee's choice; failure renders a termination procedurally unfair.
- Even where an employer has valid reasons warranting termination, termination must be in accordance with fair procedure; sections 41 and 45 of the Employment Act must be read together.
- The burden of proof in employment termination cases is on a balance of probability, not beyond reasonable doubt as in criminal cases.
- Where a disciplinary hearing is not properly conducted, the unfairness also infects and defeats an employer's counter-claim founded on the same allegations.
Court orders
#- 1.Declaration that the termination was procedurally unfair
- 2.Compensation for unfair termination of Kshs.55,200.00
- 3.Notice pay of Kshs.55,200.00
- 4.Leave for 66 days at Kshs.35,200.00
- 5.Salary dues for 14 days worked in August 2009 at Kshs.9,200.00
- 6.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act over unlawful termination and terminal dues
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Njengi v Powerstar Supermarket Kikuyu Limited (Cause 751 of 2018) [2023] KEELRC 1962 (KLR)[2023] KEELRC 1962 (KLR)25 Jul 2023
Cite this brief
#Cite this brief
Caselaw, "Peter Apollo Ochieng v Amedo Centre Kenya Limited [2016] KEELRC 1217 (KLR)", Case Analysis (2016). Cause No. 1366 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1217/eng@2016-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.