Achola v Sokhi & another (Cause 1094 of 2012) [2018] KEELRC 270 (KLR)
The bottom line
#A Kenyan court ruled a security guard's dismissal unfair because the employer could not prove valid reasons or give him a hearing, awarding nearly Kshs. 100,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent proved valid reasons for terminating the Claimant's employment on health grounds
The Respondent failed to prove valid reasons; the termination letter indicated health grounds but no evidence established the Claimant's incapacity, so the termination was unfair under section 43
The termination letter dated 11/5/2012 cited poor health, yet the Respondent's evidence attributed the termination to failure to respond to a show cause letter. The show cause memo had no timelines, and the Claimant denied receipt, which the Respondent could not disprove. The Respondent produced no complaints from clients and no medical evidence. Section 43 places the burden of proving the reason for termination on the employer, and failure renders the termination unfair under section 45.
Whether the Claimant was accorded fair procedure before termination
The Respondent failed to accord the Claimant any hearing before dismissal, breaching section 41 of the Employment Act
Section 41 requires an employer, before terminating on grounds including physical incapacity, to explain the reasons to the employee and to hear and consider representations. The Respondent exhibited a show cause memo dated 21/4/2012 without timelines, and failed to prove it was served on the Claimant, who denied receipt. No hearing was demonstrated. Combined with the absence of valid reasons, the termination was substantively and procedurally unfair under section 45(2).
Entitlement to remedies for unfair termination
The Claimant was awarded one month's salary in lieu of notice and nine months' salary as compensation for unfair termination; claims for overtime and holiday pay failed as the payslips showed payment where due
Having found the termination unfair and unjustified under section 45(2), the court exercised its discretion on remedies, awarding notice pay of Kshs. 9,733/= and nine months' compensation totalling Kshs. 97,330/=. The claims for overtime, Sunday and public holiday pay were rejected because the exhibited payslips demonstrated the Claimant had been paid these where they arose.
Legal principles established
#- In any claim arising out of termination, the employer bears the burden of proving the reason(s) for termination; failure to do so renders the termination unfair under section 45
- An employer must, before terminating employment on grounds of misconduct, poor performance or physical incapacity, explain the reasons to the employee and hear and consider any representations
Court orders
#- 1.Payment of 1 month salary in lieu of notice of Kshs. 9,733/= to the Claimant
- 2.Payment of 9 months' salary as compensation for unfair termination, Kshs. 89,597/= (total award Kshs. 97,330/=)
- 3.The Respondent to pay costs of the suit plus interest at court rate with effect from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007; Labour Institutions Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Achola v Sokhi & another (Cause 1094 of 2012) [2018] KEELRC 270 (KLR)", Case Analysis (2018). Cause No 1094 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/270/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.