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ELRCPartially AllowedNot stated in judgment· [2018] KEELRC 2382 (KLR)

Chrispo Zachariah Ogugo v Airtel Networks Kenya Limited [2018] KEELRC 2382 (KLR)

Employment and Labour Relations Court
5 February 2018
HWHellen Wasilwa
3,794 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent (formerly Celtel Kenya Limited) as a Corporate Sales Executive from 27th March 2006 and later Account Manager Grade 9, was suspended on 10th June 2011 and handed a photocopy of a summary dismissal letter dated 6th June 2011 on 6th/7th July 2011, on allegations of involvement in fraudulent postpaid account activities in Mombasa involving airtime worth Kshs. 19,969,348.90. He was arrested on 7th July 2011 but was never charged; police investigations closed on 19th March 2012 exonerating him. He claimed unlawful and unfair dismissal, unpaid salary, leave, bonus of Kshs. 500,000 and damages for cruel and degrading treatment. The Respondent justified the dismissal and counterclaimed for Kshs. 981,475.98 allegedly lost through fraud. The court framed five issues and found, applying Section 43 of the Employment Act and Wilson Kipkurui Yegon v Total Touch Express Limited, that there was no tangible evidence connecting the Claimant to the fraud and no valid reason for dismissal. Applying the natural justice principle in Mbaki v Macharia, the court found the Claimant was never heard, so due process was not followed, rendering the dismissal unfair and unjustified under Section 45(2). The court declined to find malice, converting the summary dismissal to a normal termination and awarding notice pay, unpaid salary, unpaid leave, declared bonus and 12 months' compensation totalling Kshs. 2,287,190. Service pay and medical bill refund were refused. The counterclaim was dismissed as unproved. The Respondent was ordered to pay costs plus interest from the date of judgment.

Key legal issues

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01

Whether there were valid reasons to warrant dismissal

Holding

There was no valid reason; no tangible evidence connected the Claimant to the fraud and police investigations exonerated him

Reasoning

Section 43 of the Employment Act requires the employer to prove the reasons for termination. The Respondent merely asserted the Claimant's involvement in fraud without tangible evidence. The only link was an SMS, innocently explained by CW1, and the police investigation exonerated the Claimant, closing the file on 19th March 2012. The dismissal was therefore based on wrong premises.

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02

Whether due process was followed before dismissal

Holding

No due process was followed; the Claimant was never accorded an opportunity to state his case

Reasoning

Even where gross misconduct justifies summary dismissal under Section 44 of the Employment Act, an employee must be given a minimum opportunity to respond - the natural justice principle that a person should not be condemned unheard, as held in Mbaki and Others v Macharia. The Claimant was never heard after the Respondent's investigations, so no due process preceded the dismissal.

p. 7
03

Whether the counterclaim was proved

Holding

The counterclaim was dismissed as not proved

Reasoning

Having found the dismissal was without valid reasons and without due process, the court found the decision to dismiss was based on wrong premises. The claim that the Claimant conspired with Heradion Getuno to create false accounts and caused a loss of Kshs. 981,475.98 was not proved; there was no evidence linking the Claimant to the loss.

p. 7

Legal principles established

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  • An employer must prove valid, tangible reasons for termination; failure to do so renders termination unfair under Section 45 of the Employment Act
  • An employee must be accorded an opportunity to state his case before dismissal - a principle of natural justice

Court orders

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  1. 1.Payment of 2 months salary in lieu of notice of Kshs. 223,578
  2. 2.Payment of unpaid salary for July (7 days) of Kshs. 26,084.1
  3. 3.Payment of unpaid leave days of Kshs. 19,060.70
  4. 4.Payment of bonus earned as at March 2011 and as declared of Kshs. 500,000
  5. 5.Payment of 12 months salary as compensation for wrongful termination of Kshs. 1,341,468
  6. 6.Total award of Kshs. 2,287,190
  7. 7.Respondent to pay costs of the suit plus interest from the date of judgment
  8. 8.Counter-claim dismissed
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 43, 44 and 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, "Chrispo Zachariah Ogugo v Airtel Networks Kenya Limited [2018] KEELRC 2382 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2382/eng@2018-02-05

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