Joseph Onganga Mtulah v Ol Kalou Dairy Ltd [2016] KEELRC 1281 (KLR)
The bottom line
#A Kenyan employer won on procedure but lost on substance: it fired an employee after a proper hearing yet failed to prove the allegations, paying six months' wages.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the termination
The termination was procedurally fair.
The Claimant was summoned by letter dated 3 February 2012 to appear before the Board and appeared on 17 February 2012. Minutes produced showed he was questioned. Although he claimed he was not allowed to make representations, the court held a disciplinary hearing is not a mini-court and the procedure substantially met section 41 of the Employment Act.
Substantive fairness of the termination
The termination was substantively unfair; the Respondent failed to prove the reasons as valid and fair.
The Claimant faced allegations of abuse of office, failure to disclose information, failure to manage human resources and moving company property without authority. The Respondent's witness referenced 'ghost farmers and contractors' but gave no particulars, amounts or evidence on the other allegations. The Respondent thus failed to discharge the burden under sections 43 and 45 on a balance of probabilities.
Appropriate remedies
Compensation equivalent to 6 months' gross wages (Kshs 241,800/-); other heads of claim refused.
Considering about 6 years of service, the court awarded the equivalent of 6 months gross wages as compensation. Pay in lieu of notice was found to have been paid (unchallenged testimony), unpaid salaries were found paid on a balance of probabilities, and costs were denied for the irregular filing of submissions.
Legal principles established
#- A disciplinary hearing need not adopt courtroom formalities; the test is whether the procedure substantially met the statutory requirements of section 41 of the Employment Act.
- Sections 43, 45 and 47 of the Employment Act place an onerous burden on employers to justify termination, and failure to lead evidence on the allegations means the burden is not discharged.
Court orders
#- 1.Declaration that the termination of the Claimant's employment was procedurally fair but substantively unfair
- 2.The Respondent to pay the Claimant compensation of Kshs 241,800/- (equivalent of 6 months gross wages)
- 3.Claimant denied costs for having failed to file submissions through the Advocates on record
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45 and 47)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Onganga Mtulah v Ol Kalou Dairy Ltd [2016] KEELRC 1281 (KLR)", Case Analysis (2016). Cause No 70 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1281/eng@2016-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.