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ELRCPartially AllowedCause Number 865 of 2013· [2018] KEELRC 1001 (KLR)

Cornel Otieno Omondi v Gogni Rajope Construction Company Limited & another [2018] KEELRC 1001 (KLR)

Employment and Labour Relations Court of Kenya
5 October 2018
ANAbuodha Jorum Nelson
1,781 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 an engineer over Kshs 1.2 million because his employer fired him without following the fair-hearing steps required by the Employment Act.

What this practically means

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Executive summary

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The claimant, employed as Assistant Projects Engineer from 9th January 2012 at a gross monthly salary of Kshs 200,000, was sent on indefinite compulsory leave on 24th July 2012 and his services purportedly terminated by letter dated 30th August 2012 with effect from 24th July 2012. The respondent alleged incompetence, negligence, unauthorized hire of equipment, absence from site, failure to file site reports and a dubious Kshs 120,000 demand, asserting the claimant was given a show cause letter and declined to respond, claiming he no longer wished formal employment. The claimant denied receiving the show cause letter. The court found, applying section 43(2) of the Employment Act, that reasonable grounds existed for termination: the claimant did not deny absence from site during the director's impromptu visit, and allegations of unauthorized hire of equipment and failure to compile site reports constituted misconduct. However, the termination process was procedurally flawed: there was no evidence of personal delivery of the show cause letter to a claimant on compulsory leave, and the termination effective 24th July 2012 predated the 15th August 2012 deadline to show cause, rendering the process a nullity. The termination therefore offended section 41(2) as read with section 45(2)(c) of the Employment Act. The court awarded the claimant one month's salary in lieu of notice, admitted July salary of Kshs 154,838.73, admitted leave allowance of Kshs 67,307.69, and four months' salary (Kshs 800,000) for unfair termination, totaling Kshs 1,222,146.42, with costs, subject to taxes and statutory deductions. The respondent's assertion of loss could not justify withholding dues as it was never counterclaimed nor proved. Judgment delivered on 5th October 2018 by Abuodha Jorum Nelson, Judge.

Key legal issues

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01

Validity of reasons for termination

Holding

Reasonable grounds existed to terminate the claimant's services

Reasoning

The claimant did not deny absence from site during the director's impromptu visit and failed to inform his supervisor. Allegations of unauthorized hire of project equipment and failure to compile site reports, which were among his responsibilities, constituted misconduct justifying termination under section 43.

p. 2
02

Procedural fairness in termination

Holding

The termination process was flawed and offended section 41(2) as read with section 45(2)(c) of the Employment Act

Reasoning

The show cause letter allegedly delivered personally on 30th July 2012 had no evidence of delivery, the claimant was on compulsory leave and denied receipt, and the termination letter dated 30th August 2012 took effect from 24th July 2012, rendering the show cause process a nullity since services had already been terminated before the claimant could respond.

p. 2
03

Withholding of terminal dues

Holding

The respondent had no basis to withhold terminal dues

Reasoning

The alleged loss was never counterclaimed and no evidence was led to prove it, so the claimant's terminal dues could not be withheld on that account.

p. 3

Legal principles established

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  • The reasons for termination are those the employer genuinely believed to exist at the time of termination
  • An employer must hear and consider an employee's representations on grounds of misconduct before termination under section 41(2)
  • Valid reasons for termination cannot cure a procedurally flawed termination

Court orders

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  1. 1.One month's salary in lieu of notice
  2. 2.Salary for days worked in July 2012 of Kshs 154,838.73 (admitted)
  3. 3.Leave allowance of Kshs 67,307.69 (admitted)
  4. 4.Four months' salary of Kshs 800,000.00 for unfair termination of service
  5. 5.Total award of Kshs 1,222,146.42 with costs to the claimant
  6. 6.Items (a), (b), (c) and (d) subject to taxes and statutory deductions

Authorities

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Legislation

  • Employment Actsection 43(2)
  • Employment Actsection 41(2)
  • Employment Actsection 45(2)(c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 45 applied)

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, "Cornel Otieno Omondi v Gogni Rajope Construction Company Limited & another [2018] KEELRC 1001 (KLR)", Case Analysis (2018). Cause Number 865 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1001/eng@2018-10-05

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