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ELRCPartially AllowedCause No. 979 of 2015· [2018] KEELRC 225 (KLR)

Mokamba Naftal Onyango v Jabali Furniture Limited [2018] KEELRC 225 (KLR)

Employment and Labour Relations Court
20 December 2018
HWHellen S. Wasilwa
1,542 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 who cannot prove a valid reason and fair process for dismissal must pay compensation, notice pay, severance and unpaid allowances.

What this practically means

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Executive summary

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The Claimant, employed as a Technician from July 2012 and confirmed by contract dated 27 January 2013 at a last salary of Kshs 16,000, sued alleging unfair termination. He claimed he was told on 15 May 2015 by the Respondent's Director that the company was no longer doing well and his services were no longer required. He sought a declaration of unfair dismissal, terminal dues of Kshs 576,363.30, costs and interest, contending he was also made to work as Store Manager and Driver without pay, and was denied house allowance contrary to Section 31 of the Employment Act, and that the contract lacked a job description contrary to Section 10(2)(c). The Respondent denied termination, asserting the Claimant resigned or absconded to take other employment, that salary was consolidated, and counter-claimed Kshs 20,250 for repair of a truck damaged while in his custody. The court found no evidence the Claimant served as Store Manager, and noted the Respondent never served a notice to show cause for alleged absconding. Accepting the Claimant's version, the court held the dismissal was without valid reason and without due process, contrary to Section 45 of the Employment Act, and declared it unfair. The court awarded Kshs 156,050 comprising one month's notice pay, six months' compensation, severance pay for two years, and house allowance for 17 months, plus costs and interest. The counter-claim was not granted.

Key legal issues

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01

Whether the Claimant's termination was unfair

Holding

Termination was unfair and unjustified; no valid reason established and no due process followed

Reasoning

The court found the employment relationship ended without explanation. The Claimant said he was told his services were no longer required; the Respondent said he absconded but produced no notice to show cause. Under Section 45 of the Employment Act the employer must prove a valid reason and fair procedure, neither of which was shown. The Claimant's account was therefore accepted.

p. 2
02

Remedies for unfair termination

Holding

Notice pay, six months' compensation, severance pay and unpaid house allowance awarded

Reasoning

Applying the Employment Act, the court awarded one month's salary in lieu of notice, six months' salary as compensation for unfair dismissal, severance pay computed for two years of service, and house allowance for 17 months at 15% of the basic salary, totaling Kshs 156,050 with costs and interest.

p. 3

Legal principles established

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  • An employer bears the burden of proving a valid reason and fair procedure for termination; failing which the termination is unfair
  • Where the respondent alleges absconding, it must show it served a notice to show cause; unexplained ends to the employment relationship are resolved against the employer

Court orders

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  1. 1.Declaration that the dismissal of the Claimant was unfair and unjustified
  2. 2.1 month's salary in lieu of notice = Kshs 16,000
  3. 3.6 months' salary as compensation for unfair dismissal = Kshs 96,000
  4. 4.Severance pay for 2 years = Kshs 16,000
  5. 5.Unpaid house allowance for 17 months = Kshs 28,050
  6. 6.Total award of Kshs 156,050
  7. 7.Respondent to pay costs of the suit plus interest at Court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 31
  • Employment ActSection 10(2)(c)
  • Employment ActSection 10(5)

Cases cited (3)

  • Carolyne L. Musonye v Panari Hotel Ltd
    [2017] eKLR
  • The Board of Governors, Cardinal Otunga High School, Mosocho & 2 Others v Elizabeth Kwamboka Khaemba
  • David Gichana Omuya v Mombasa Maize Millers
    [2004] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Section 45 relied on)

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, "Mokamba Naftal Onyango v Jabali Furniture Limited [2018] KEELRC 225 (KLR)", Case Analysis (2018). Cause No. 979 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/225/eng@2018-12-20

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