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ELRCPartially AllowedCause 1673 of 2015· [2018] KEELRC 1041 (KLR)

Fredrick Oduor Ochieng v Marketing Africa Limited [2018] KEELRC 1041 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
28 September 2018
297 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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A Kenyan employer that skipped court lost outright and must pay a messenger employee over Kshs 194,000 for firing him while on sick leave.

What this practically means

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Executive summary

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In this ex parte employment cause before the Employment and Labour Relations Court at Nairobi, the claimant Fredrick Oduor Ochieng testified that he was employed by Marketing Africa Limited in December 2006 as a messenger earning Kshs 16,000 per month. He claimed he was terminated while on three months' sick leave, that he never went on leave during his employment, that the respondent wrongly deducted a medical bill from his terminal dues despite holding an AAR medical card, and that NSSF and NHIF dues were not remitted until NSSF inspectors compelled the respondent to do so. The respondent was duly served but neither entered appearance nor filed a defence, so the court proceeded ex parte without the benefit of the respondent's side of the story. Accepting the claimant's uncontroverted evidence, Judge Abuodha Jorum Nelson awarded: one month's salary in lieu of notice (Kshs 16,000); unpaid leave (Kshs 33,600); unpaid balance of salary for February (Kshs 7,500); 17 days worked in March 2015 (Kshs 9,061); and eight months' salary for unfair termination of service (Kshs 128,000), a total of Kshs 194,161. The award was made subject to taxes and statutory deductions, and the claimant was granted costs of the suit. The judgment delivers its disposition without extended reasoning, and no authorities or statutes are cited.

Key legal issues

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01

Unfair termination compensation

Holding

The claimant was awarded eight months' salary as compensation for unfair termination of service, totaling Kshs 128,000.

Reasoning

The claimant testified that he was terminated while on three months' sick leave. The respondent, though served, failed to enter appearance or file a defence, so the claim was uncontroverted. The court accepted the claimant's unchallenged evidence and awarded eight months' gross salary as compensation for the unfair termination.

p. 1
02

Terminal dues including notice pay, leave and salary arrears

Holding

The court awarded one month's salary in lieu of notice (Kshs 16,000), unpaid leave (Kshs 33,600), unpaid February salary balance (Kshs 7,500) and 17 days worked in March 2015 (Kshs 9,061).

Reasoning

The claimant's unchallenged evidence was that he never went on leave during his employment and that salary for part of February and 17 days in March 2015 remained unpaid. With no defence filed, the court accepted these claims and quantified them at the monthly salary of Kshs 16,000.

p. 1
03

Effect of non-attendance by the respondent despite service

Holding

The suit proceeded ex parte because the respondent was duly served but failed to enter appearance or file a defence.

Reasoning

The court was persuaded that the respondent had been duly served but did not enter appearance or file a defence. Consequently the respondent's side of the story was not before the court, and the claimant's uncontroverted evidence formed the basis of the award. This is a procedural finding rather than a substantive ratio.

p. 1

Legal principles established

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  • An employer who unfairly terminates an employee's services may be ordered to compensate the employee with gross salary for the months the court considers just, here eight months' salary.

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs 16,000
  2. 2.Unpaid leave of Kshs 33,600
  3. 3.Unpaid balance of salary for February of Kshs 7,500
  4. 4.17 days worked in March 2015 of Kshs 9,061
  5. 5.Eight months' salary for unfair termination of service of Kshs 128,000
  6. 6.Total award of Kshs 194,161 subject to taxes and statutory deductions
  7. 7.Costs of the suit to the claimant
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act over an employment dispute

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, "Fredrick Oduor Ochieng v Marketing Africa Limited [2018] KEELRC 1041 (KLR)", Case Analysis (2018). Cause 1673 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1041/eng@2018-09-28

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