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ELRCPartially AllowedNot stated in judgment· [2016] KEELRC 1727 (KLR)

Bernard Oumja Anyanga v Fast Eddie’s (K) Limited [2016] KEELRC 1727 (KLR)

Employment and Labour Relations Court
5 February 2016
2,079 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer was ordered to pay over Kshs.1.1 million for firing an employee without a hearing, proving that skipping fair procedure is costly.

What this practically means

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Executive summary

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In this first-instance Employment and Labour Relations Court suit, the Claimant, employed from August 2003 as Assistant Director Corporate Sales and summarily dismissed on 10th April 2012, sought compensation for wrongful and unlawful dismissal plus terminal benefits. The Respondent denied the claims and counterclaimed Kshs.501,668.70 for alleged fraudulent activities and wilful neglect. The Claimant testified that the three charges against him - preferential discounts, taking Saturdays off, and holding shares in a competitor - had been resolved at a disciplinary hearing recorded in a letter of 17th November 2011, and that his subsequent dismissal occurred without any show cause letter or fresh disciplinary process. The Respondent called no witness, relying only on pleadings and written submissions, so the Claimant's evidence remained wholly unrebutted. The Court framed three issues: valid reason, fair procedure, and remedies. It found the Claimant exonerated himself under Section 37(5) of the Employment Act and that the Respondent failed under Sections 43 and 45 to justify the dismissal. The procedure violated Section 41 since previously resolved issues were revisited without due process. The Court awarded notice pay (Kshs.65,000), accrued leave (Kshs.18,956), April 2012 salary (Kshs.27,080), salary arrears (Kshs.39,000), unpaid commission (Kshs.315,990.50), and ten months' compensation (Kshs.650,000) under Section 49, totalling Kshs.1,116,026 with interest from filing. Gratuity was refused due to NSSF registration, and the counterclaim was dismissed for want of proof. The Respondent was ordered to pay costs.

Key legal issues

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01

Valid reason for dismissal

Holding

The Respondent did not have a valid reason to dismiss the Claimant; the Claimant gave reasonable explanations exonerating him from the alleged misconduct, unrebutted by any defence evidence.

Reasoning

The Claimant's uncontroverted testimony denied each of the three charges - preferential discounts, taking Saturdays off, and being a shareholder of a competitor. He explained each charge candidly, including a standing arrangement for Saturdays approved by the Director. Section 37(5) of the Employment Act requires the employee to show the dismissal was wrongful, which the Court found discharged given his good track record and the Respondent's high turnover during his tenure. The Respondent failed to satisfy Sections 43 and 45.

p. 3
02

Fair procedure

Holding

The dismissal breached Section 41 of the Employment Act because the Respondent revisited previously resolved issues without a show cause letter or disciplinary hearing.

Reasoning

The charges had been addressed and resolved at a disciplinary hearing culminating in the letter of 17th November 2011, under conditions for continued employment. When the Respondent later alleged non-compliance, it admitted it issued no show cause letter and afforded no disciplinary hearing. Terminating employment without that process violated Section 41, rendering the dismissal procedurally unfair under Section 45.

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03

Remedies and counterclaim

Holding

Claimant awarded notice pay, leave, salary arrears, unpaid commission and ten months' compensation; counterclaim dismissed for want of proof.

Reasoning

Having served about nine years with good service and high sales turnover, and having lost his livelihood suddenly without terminal dues, the Claimant was awarded ten months' salary under Section 49(1)(c) read with Section 49(4), not the twelve sought. Gratuity was barred by NSSF registration. The counterclaim failed because the Respondent called no witness and the alleged losses were shown to have been recovered from commission or customers.

p. 4

Legal principles established

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  • An employer must follow fair procedure under Section 41 of the Employment Act before summarily dismissing an employee, even where the issues were previously the subject of a resolved disciplinary process
  • Pleadings and attached documents do not constitute evidence unless submitted by consent or through a defence witness

Court orders

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  1. 1.Kshs.650,000.00 compensation for wrongful and unlawful summary dismissal
  2. 2.Kshs.65,000.00 in lieu of notice
  3. 3.Kshs.18,956.00 in lieu of leave
  4. 4.Kshs.27,080.00 arrear salary for April 2012
  5. 5.Kshs.39,000.00 salary arrears (13 months x 3,000)
  6. 6.Kshs.315,990.50 unpaid commission
  7. 7.Total award of Kshs.1,116,026.00 payable with interest at Court rates from date of filing suit till payment in full
  8. 8.Respondent to pay the cost of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007

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, "Bernard Oumja Anyanga v Fast Eddie’s (K) Limited [2016] KEELRC 1727 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1727/eng@2016-02-05

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