Godfrey Kitoto Ochieng & 25 others v Hydrobuild Construction Co. Ltd & another [2016] KEELRC 1545 (KLR)
The bottom line
#A Kenyan court ordered an employer who abandoned 26 workers in war-torn South Sudan to pay each of them six months' salary as compensation for unfair, constructive dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimants were unfairly terminated
Yes. With no defence filed and no written reasons given for termination, the terminations were unfair labour practices contrary to section 45 of the Employment Act, and the Claimants were constructively dismissed after being abandoned in South Sudan.
The Respondents filed no defence despite being given opportunity. The court found that the employees were left in South Sudan under intolerable conditions of civil war without salaries, forcing them to abandon employment and return to Kenya. Failure to issue reasons or notice breached sections 43 and 45 of the Employment Act. The abandonment was at the instance of the Respondents and constituted constructive dismissal, entitling the Claimants to compensation.
Quantum of compensation
Compensation for each Claimant at 6 months' gross pay, assessed on each Claimant's last gross salary, itemised at paragraph 26(a) to (z).
In the absence of any evidence from the Respondents as to their circumstances, the court considered an award of 6 months' gross pay appropriate for each Claimant. Amounts were computed from the last gross salaries paid (e.g. Kshs.31,000.00 yielding Kshs.186,000.00; Kshs.26,350.00 yielding Kshs.158,100.00). Terminal dues had been settled by consent; interest was declined on that basis.
Notice pay and interest
Notice pay was not provided for in the final orders; interest was refused because terminal dues were paid by consent; costs were awarded to the Claimants.
The uncontested claim remained unopposed by any defence or evidence. The court reasoned that with terminal dues paid by consent, the payable dues would not attract interest. The Claimants were found entitled to costs given the unwarranted preliminary objections and the 2014 filing date. The final orders granted compensation, costs and certificates of service only.
Legal principles established
#- Termination without reasons or notice, in the absence of a defence, is unfair and contrary to sections 43 and 45 of the Employment Act
- Abandonment by an employer, exposing an employee to intolerable conditions that force the employee out of work, amounts to constructive dismissal
Court orders
#- 1.Judgment entered for the Claimants against the Respondents
- 2.Compensation at 6 months gross pay awarded to each Claimant as set out under paragraph 26(a) to (z)
- 3.Costs of the suit awarded to the Claimants
- 4.Certificates of Service to be issued unconditionally forthwith
- 5.No interest on the amounts awarded since terminal dues were paid by consent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under its establishing law; Cause filed under the Court Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Godfrey Kitoto Ochieng & 25 others v Hydrobuild Construction Co. Ltd & another [2016] KEELRC 1545 (KLR)", Case Analysis (2016). Cause No. 145 of 2014 (consolidated with Cause No. 2137 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1545/eng@2016-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.