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ELRCPartially AllowedNot stated in judgment (Memorandum of Claim dated 4th October 2016)· [2018] KEELRC 749 (KLR)

Hezron Kudiba Ochilo v Borderless Tracking Limited (Cause 803 of 2016) [2018] KEELRC 749 (KLR)

Employment and Labour Relations Court
1 November 2018
LNLinnet Ndolo
934 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a sacked supervisor Kshs. 179,250 because his employer could not prove it gave him a fair hearing before dismissal.

What this practically means

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Executive summary

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The Claimant, employed on 5th March 2014 as Tag Operators Supervisor at a monthly salary of Kshs. 30,000, claimed that his employment was terminated verbally on 10th February 2015 without notice or a hearing. He sought notice pay, 10 days' unpaid salary for February 2015, unpaid working holidays, prorata leave for 11 months, 12 months' salary as compensation, a certificate of service and costs. The Respondent admitted the termination but maintained it was for a sound and proper reason with all procedural requirements complied with, alleging the Claimant tagged unauthorized containers and misused a company motor bike. The court framed two issues: the lawfulness and fairness of the termination, and entitlement to remedies. Relying on the Radido J decision in Alphonce Maghanga Mwachanya v Operation 680 [2013] eKLR on section 41 of the Employment Act, the court found no evidence that administrative charges were preferred against the Claimant or that he was afforded a hearing, so the allegations were untested and unproved under section 43. The termination was held both substantively and procedurally unfair. The court awarded four months' salary in compensation, one month's notice pay, prorata leave for 11 months and the admitted 10 days' salary, totalling Kshs. 179,250 with interest at court rates from the date of judgment. The claim for unpaid working holidays was dismissed as unproved. The Claimant was also awarded a certificate of service and costs of the case. Judgment was delivered at Mombasa on 1st November 2018 by Linnet Ndolo J.

Key legal issues

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01

Whether the termination was lawful and fair

Holding

The termination was both substantively and procedurally unfair

Reasoning

The Respondent alleged misconduct (tagging unauthorized containers and misuse of a motor bike) but produced no evidence that administrative charges were made against the Claimant at the shop floor as required by section 41 of the Employment Act, and no hearing was demonstrated. The allegations were therefore untested and unproved under section 43, rendering the termination unfair and entitling the Claimant to compensation.

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02

Remedies for the unfair termination

Holding

Four months' salary in compensation, one month's notice pay, prorata leave and unpaid February 2015 salary awarded

Reasoning

The court took into account the Claimant's length of service and the Respondent's conduct in awarding four months' compensation. Notice pay followed from the unfair termination. The prorata leave claim succeeded in the absence of leave records to rebut it, and the 10 days' salary for February 2015 was admitted and payable. The unpaid working holidays claim failed for want of proof.

p. 2

Legal principles established

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  • For procedural fairness under section 41 of the Employment Act, an employer must explain the reasons for termination in a language the employee understands, allow a representative to be present, hear and consider explanations, and where applicable comply with internal disciplinary rules
  • Termination without administrative charges and without proved allegations is both substantively and procedurally unfair, attracting compensation

Court orders

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  1. 1.Judgment entered in favour of the Claimant for Kshs. 179,250 comprising 4 months' salary in compensation (Kshs. 120,000), 1 month's salary in lieu of notice (Kshs. 30,000), prorata leave for 11 months (Kshs. 19,250) and salary for 10 days in February 2015 (Kshs. 10,000)
  2. 2.The award to attract interest at court rates from the date of judgment until payment in full
  3. 3.The Claimant to be issued with a certificate of service
  4. 4.The Respondent to pay costs of the case

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 12

Cases cited (1)

  • Alphonce Maghanga Mwachanya v Operation 680
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)

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, "Hezron Kudiba Ochilo v Borderless Tracking Limited (Cause 803 of 2016) [2018] KEELRC 749 (KLR)", Case Analysis (2018). Not stated in judgment (Memorandum of Claim dated 4th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/749/eng@2018-11-01

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