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ELRCPartially AllowedCause No 1189 of 2012· [2018] KEELRC 164 (KLR)

Machuki Anyona Julius & 5 others v Omaera Pharmaceuticals Limited [2018] KEELRC 164 (KLR)

Employment and Labour Relations Court
20 December 2018
HWHellen Wasilwa
3,059 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan hospital lost its unfair termination case because it kept no records proving employees absconded or committed misconduct — employers must document every dismissal.

What this practically means

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Executive summary

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Five claimants (the 2nd Claimant having been struck out for being time barred by a Ruling of Mbaru J delivered on 18th December 2013) sued their former employer alleging wrongful and unfair termination. They pleaded breach of Sections 9, 44(2), 45(1) and 51(1) of the Employment Act, 2007, citing failure to issue written contracts, termination without notice or reasons, and failure to issue certificates of service. The Respondent admitted the employment relationships but maintained the terminations were for valid reasons, alleging that the 1st and 3rd Claimants absconded duty, the 4th and 6th Claimants resigned voluntarily, and the 5th Claimant was summarily dismissed for pilfering and operating a parallel chemist business. It also filed a counter claim. Wasilwa J framed three issues: whether the 1st, 3rd and 6th Claimants were dismissed or absconded; whether the 5th Claimant was dismissed for valid reasons; and entitlement to remedies. The court found the Respondent produced no notice to show cause for the alleged abscondments and accepted the Claimants' accounts that they were told to leave. The allegation against the 5th Claimant was unproven and he was condemned unheard, offending Section 41. The 4th Claimant resigned but was not allowed to serve notice. Judgment was entered for the Claimants: 8 months' salary compensation and notice pay for the unfairly terminated claimants, notice pay only for the 4th Claimant, certificates of service for all, with costs and interest against the Respondent. The counter claim was not granted.

Key legal issues

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01

Whether the 1st, 3rd and 6th Claimants were dismissed or absconded duty

Holding

The court accepted the Claimants' testimony that they were told to leave, finding no evidence of any notice to show cause for abscondment

Reasoning

The Claimants testified they were summoned and told their services were no longer required. The Respondent alleged abscondment but produced no notice to show cause or communication to the alleged abscondees. In the absence of any such communication, the court took the Claimants' contention as the correct position, entitling them to compensation for unlawful termination.

p. 5
02

Whether the 5th Claimant was dismissed for valid reasons

Holding

The dismissal was without valid reason and procedurally unfair; the Respondent did not prove the alleged parallel chemist business and no disciplinary process was undertaken

Reasoning

The Respondent alleged the 5th Claimant was dismissed for operating a parallel chemist, but produced no evidence proving the existence of such a business. No letter inviting him to a disciplinary hearing existed and he was never taken through any disciplinary process. Dismissing him unheard violated Section 41 of the Employment Act, rendering the termination wrongful and unfair.

p. 5
03

Whether the 4th Claimant, who resigned, is entitled to remedies

Holding

The 4th Claimant resigned voluntarily but was denied the opportunity to serve notice, and was awarded one month's salary in lieu of notice and a certificate of service

Reasoning

The 4th Claimant tendered his resignation on 27th July 2010, and the director asked him to leave immediately without serving the notice period. Although the resignation was voluntary, the denial of the notice period entitled him to payment in lieu of notice and issuance of a certificate of service, but not compensation for unlawful termination.

p. 3
04

Whether the Claimants are entitled to remedies sought

Holding

The Claimants were awarded compensation of 8 months' salary (where termination was unfair), one month's pay in lieu of notice, and certificates of service, plus costs and interest

Reasoning

Applying Sections 49, 50 and 51 of the Employment Act, the court awarded each claimant whose termination was unlawful 8 months' salary as compensation, one month's pay in lieu of notice, and certificates of service. The 4th Claimant, having resigned, received only notice pay and a certificate. Costs and interest from the date of judgment were also awarded against the Respondent.

p. 6

Legal principles established

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  • Where an employer alleges abscondment but produces no notice to show cause or other communication to the employee, the employee's account that they were dismissed is accepted
  • Termination without a disciplinary process and without hearing the employee offends Section 41 of the Employment Act, 2007

Court orders

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  1. 1.1st Claimant: 8 months' salary as compensation for unlawful termination (Kshs. 736,000), 1 month's salary in lieu of notice (Kshs. 92,000), and issuance of Certificate of Service - total Kshs. 828,000
  2. 2.3rd Claimant: 8 months' salary as compensation for unlawful termination (Kshs. 168,000), 1 month's salary in lieu of notice (Kshs. 21,000), and issuance of Certificate of Service - total Kshs. 189,000
  3. 3.4th Claimant: 1 month's salary in lieu of notice (Kshs. 37,000) and issuance of Certificate of Service - total Kshs. 37,000
  4. 4.5th Claimant: 1 month's salary in lieu of notice (Kshs. 34,000), 8 months' salary as compensation for unlawful dismissal (Kshs. 272,000), 18 days salary for days worked in August 2010 (Kshs. 20,400), and issuance of Certificate of Service - total Kshs. 326,400
  5. 5.6th Claimant: 1 month's salary in lieu of notice (Kshs. 45,000), 8 months' salary as compensation for unlawful dismissal (Kshs. 360,000), and issuance of Certificate of Service - total Kshs. 405,000
  6. 6.Claimants awarded costs and interest payable by the Respondent with effect from the date of the judgment

Authorities

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Legislation

  • Employment ActSection 9(1)(a)
  • Employment ActSection 41(1) and (2)
  • Employment ActSection 42(1)
  • Employment ActSection 43
  • Employment ActSection 44(1),(2),(3),(4)
  • Employment ActSection 45(1)
  • Employment ActSection 49, 50 and 51
  • Employment ActSection 51(1)

Cases cited (8)

  • Kenya Union of Commercial Food and Allied Workers Versus Meru North Farmers Sacco Limited
    (2014) eKLR
  • Samsung Electronics East Africa Limited Versus K. M
    (2017) eKLR
  • CMC Aviation Limited Versus Mohammed Noor
    (2015) eKLR
  • Evans Katiezo Aligulah Versus Eldomatt Wholesale and Supermarket Limited
    (2006) eKLR
  • Kenya Revenue Authority Versus Menginya Salim Murgani
    (2010) eKLR
  • Charles Opata Versus Norfolk Hotel
    (2017) eKLR
  • D.K Njagi Marete Versus Teachers Service Commission
    Industrial Cause Number 379 of 2009
  • Maria Kagai Ligaga Versus Coca Cola East and Central Africa Limited
    Industrial Cause Number 611(N) of 2009
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 9, 41, 42, 43, 44, 45, 49, 50 and 51 invoked)

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, "Machuki Anyona Julius & 5 others v Omaera Pharmaceuticals Limited [2018] KEELRC 164 (KLR)", Case Analysis (2018). Cause No 1189 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/164/eng@2018-12-20

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