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ELRCPartially AllowedNot stated in judgment· [2018] KEELRC 2521 (KLR)

Bonface Machoka Ototo v Valley Confectionary Ltd [2018] KEELRC 2521 (KLR)

Employment and Labour Relations Court
19 January 2018
RSRadido Stephen
469 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court awarded a long-serving bakery worker maximum compensation after his employer skipped the hearing and failed to challenge his evidence.

What this practically means

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Executive summary

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The Claimant sued the Respondent on 29 April 2015 alleging unfair termination of employment and breach of contract. He testified that he was employed in 1998 by Valley Bakery Ltd, whose name changed to Valley Confectionary Ltd in April 2011, when he was issued a fresh appointment letter. He stated that his services were terminated without notice by the Personnel Manager because he had sued the Respondent seeking damages for a workplace accident. His salary at separation was Kshs 14,750/- and he testified he never went on leave throughout his service. The Respondent, though represented when the hearing date was scheduled, did not appear at the hearing, which proceeded undefended. The Claimant's evidence, supported by a pay slip and NSSF statement, therefore went unchallenged. The Court held the termination unfair. However, it noted the Claimant tactfully failed to formally produce a schedule of final dues of Kshs 73,987/- paid on 30 April 2011, which included leave pay, though it was unclear whether pay in lieu of notice was included. The Court also flagged an inconsistency: the Claimant testified he was dismissed in April 2012, yet the dues schedule is dated 30 April 2011. Considering the length of employment, the Court awarded maximum compensation of Kshs 177,000/-, with costs on half scale, and directed the file's transmission back to Nakuru.

Key legal issues

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01

Whether the termination was unfair

Holding

The termination was unfair; the Claimant's unchallenged testimony was that his services were ended without notice because he had sued the Respondent over a workplace accident.

Reasoning

The Respondent, though represented when the hearing date was fixed, did not attend the hearing. The hearing proceeded and the Claimant testified, producing a pay slip and NSSF statement. With no evidence controverting his account that he was dismissed without notice for having sued the employer, the Court accepted his evidence and held the termination unfair, the claim having been brought under unfair termination/breach of contract.

p. 2
02

What remedies flow from the unfair termination

Holding

Maximum compensation of Kshs 177,000/- (12 months' salary at Kshs 14,750/-) was awarded, considering the length of employment since 1998.

Reasoning

The Court considered the length of employment, which began in 1998 when the employer was Valley Bakery Ltd, continuing after the 2011 name change. Given the long service and the unfair termination, the Court regarded maximum compensation as appropriate. The Claimant's failure to formally produce the final dues schedule of Kshs 73,987/-, which included leave pay, appears to have constrained any further awards such as notice pay.

p. 2

Legal principles established

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  • Where a respondent is represented when a hearing date is fixed but fails to attend, the hearing may properly proceed undefended and unchallenged evidence may be acted upon.
  • Unchallenged and uncontroverted evidence of unfair termination will be accepted and may found an award of maximum compensation having regard to length of service.

Court orders

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  1. 1.Declaration that termination of the Claimant's employment was unfair
  2. 2.Respondent to pay the Claimant compensation of Kshs 177,000/-
  3. 3.Claimant to have costs on half scale
  4. 4.File to be transmitted back to Nakuru after delivery of the judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination/breach of contract 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, "Bonface Machoka Ototo v Valley Confectionary Ltd [2018] KEELRC 2521 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2521/eng@2018-01-19

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