Stephen Odindo J & K Investment (K) Limited (Cause 863 of 2014) (Employment and Labour) [2018] KEELRC 1248 (KLR)
The bottom line
#A Kenyan court awarded a welder Kshs. 268,600 after finding his dismissal without notice, reasons or a hearing was unfair.
What this practically means
#Executive summary
#Key legal issues
#Fairness of the termination
The Claimant was unfairly and unlawfully dismissed.
The Claimant worked for over 2 years and 5 months, evidenced by his pay slip showing a gross salary of Kshs. 24,000. The Respondent called no witness, so the claimant's case was unchallenged. There was no proof of how the employment ended other than the Claimant's account: he was not subjected to any disciplinary hearing and was never told the reasons for termination, contrary to natural justice and the Employment Act.
Effect of respondent's failure to adduce evidence
The claimant's case remained unchallenged and documents merely marked for identification could not be relied on by the respondent.
The Respondent failed to call any witness at the hearing, and the Court ordered closure of the claimant's case. Relying on Court of Appeal authority, the court held that documents marked for identification only are not properly admitted evidence and cannot be used, leaving the claimant's uncontroverted evidence standing.
Terminal dues
Claimant awarded one month's salary in lieu of notice, 4 days' salary for February 2014, unremitted NSSF deductions, and 10 months' salary as damages.
The court accepted the claimant's submissions that on unfair termination he was entitled to notice pay under Section 49(1)(a) and Section 35(1)(c) of the Employment Act, the unremitted NSSF deductions which the Respondent did not deny in court, earned but unpaid salary, and compensatory damages of 10 months' gross salary given the summary dismissal without procedure.
Legal principles established
#- Where a respondent fails to call evidence and the claimant's case is unchallenged, unprobed documents marked for identification cannot be used as evidence and the claimant's uncontroverted account stands.
- An employee dismissed without a disciplinary hearing and without being informed of the reasons for termination is unfairly dismissed.
Court orders
#- 1.1 month salary in lieu of notice of Kshs. 24,000
- 2.4 days salary for February 2014 of Kshs. 3,200
- 3.Unremitted NSSF deductions of Kshs. 1,400
- 4.10 months salary as damages for unfair and unlawful termination of Kshs. 240,000 (total award Kshs. 268,600)
- 5.The Claimant be issued with a Certificate of Service
- 6.The Respondent to pay costs of the suit plus interest at Court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Odindo J & K Investment (K) Limited (Cause 863 of 2014) (Employment and Labour) [2018] KEELRC 1248 (KLR)", Case Analysis (2018). Cause No. 863 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1248/eng@2018-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.