John Nyasaka Okech v Kenya Medical Research Institute [2017] KEELRC 1951 (KLR)
The bottom line
#A Kenyan employer who fires a worker without a proper hearing loses in court, even when the reason for dismissal may have been valid.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness under Section 41 of the Employment Act
Termination was unfair because the Claimant was not invited to the disciplinary meeting, no charges were framed, and he was not given the opportunity to be accompanied or heard
Section 41 obliges the employer to explain termination reasons to the employee in a language he understands and to allow him to be accompanied by a fellow employee or union representative. The employer bears responsibility to arrange and notify the meeting. The Claimant's two written explanations were part of investigations only, not a hearing. No evidence showed he was informed of complaints and asked to explain. The meeting of 14th February 2011 considered statements in his absence. Section 35 cited by the Respondent concerns notice only, not procedure.
Validity of reason for termination under Section 43
Although there may have been a valid reason based on the evidence, the failure to comply with Section 41 meant validity was never proved, rendering the termination unfair for want of both procedure and valid reason
The court held that where the employer fails to frame charges or give a hearing, the validity of reasons cannot be established despite evidence adduced in court. The Claimant admitted dangerous driving incidents, but that admission could not cure the procedural breach. The termination was therefore unfair on both procedural and substantive grounds, warranting the declaration sought.
Burden of proof under Section 47(5)
The burden of proving unfair termination rests on the employee, while the burden of justifying grounds for termination rests on the employer
The court invoked Section 47(5) to allocate burdens: the employee proves unfair termination occurred, while the employer must justify the grounds. The Respondent's arguments that the Claimant was under an obligation to show unfairness, was not in a union, or understood English, demonstrated a misapprehension of Section 41's requirements, which apply regardless of union membership.
Remedies: gratuity, leave and unexpired term
Claimant awarded gratuity for 8 months of the incomplete contract at 15% and 20 days pro-rata leave, but refused payment for the unexpired contract term as the termination was pre-empted by his own reckless driving
Gratuity was unpaid only for the contract running July 2010 to February 2011; the 15% rate from submissions was uncontested, yielding Shs.37,171.20. RW2 admitted 20 days pro-rata leave entitlement of Shs.20,650.70. Payment for the unexpired term is not provided by the Employment Act; compensation lies under Section 49, which was refused because the Claimant admitted the reckless driving that prompted termination.
Legal principles established
#- An employer must, before termination, explain reasons to the employee in a language the employee understands, and arrange and notify a meeting where the employee may be accompanied by a fellow employee or union representative of his choice
- Written explanations obtained from an employee do not constitute compliance with Section 41; they form part of investigations and cannot substitute a disciplinary hearing
- Where an employer fails to frame charges or give a hearing under Section 41, the validity of reasons for termination is not proved even if evidence could have supported them
- Employment contracts are terminable and the Act provides no payment for the unexpired term; the remedy is compensation under Section 49
Court orders
#- 1.Declaration that the termination of the Claimant's contract was unfair
- 2.Award of gratuity of Shs.37,171.20 for 8 months from July 2010 to February 2011
- 3.Award of Shs.20,650.70 in lieu of 20 days pro-rata leave
- 4.Respondent to pay the Claimant's costs
- 5.Decretal sum to attract interest at court rates from date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination claims under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Nyasaka Okech v Kenya Medical Research Institute [2017] KEELRC 1951 (KLR)", Case Analysis (2017). Memorandum of Claim dated 25th February 2014 (as amended on 4th June 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1951/eng@2017-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.