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ELRCDismissedCause No. 17 of 2016· [2018] KEELRC 2555 (KLR)

Deus Onyango Otieno v Decasa Hotel Limited [2018] KEELRC 2555 (KLR)

Employment and Labour Relations Court of Kenya
3 December 2018
DMD. K. Njagi MareteMOMaureen Onyango
1,083 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 upheld a hotel worker's dismissal for gross misconduct, confirming employees must prove unfair termination before getting compensation.

What this practically means

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Executive summary

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The claimant, Deus Onyango Otieno, sued Decasa Hotel Limited by a Statement of Claim dated 8th January 2016 alleging that his employment as a kitchen steward on an oral contract at Kshs.10,000 per month was terminated without reasons, notice or payment in lieu, contrary to sections 40 and 41 of the Employment Act, 2007. He sought a declaration of unfair dismissal, one month's salary in lieu of notice, twelve months' compensation totalling Kshs.130,000, a certificate of service, costs and interest. The respondent denied the claim, asserting the claimant was a casual labourer engaged from day to day, that no employment relationship in the terms alleged existed, and that he was summarily dismissed on suspicion of breaking into a hotel room and stealing items belonging to a customer, which items were never recovered. The court framed three issues: whether the termination was wrongful, unfair and unlawful; whether the claimant was entitled to the relief sought; and who bears the costs. On the balance of probability and preponderance of evidence, the court found the respondent's case more convincing, holding that the claimant failed to demonstrate unlawful termination and failed to contradict the case of gross misconduct. The claim was dismissed in its entirety with an order that each party bear their own costs. Judgment was authored by D.K. Njagi Marete, J and delivered on 3rd December 2018 before Maureen Onyango, Principal Judge.

Key legal issues

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01

Whether termination of the claimant's employment was wrongful, unfair and unlawful

Holding

The termination was lawful, being based on gross misconduct of breaking into a customer's room and stealing

Reasoning

The claimant, employed on an alleged oral contract as a kitchen steward, alleged termination without reasons, notice or procedural fairness under sections 40 and 41 of the Employment Act. The respondent denied an employment relationship, asserting casual employment and summary dismissal for gross misconduct. Applying the balance of probability and preponderance of evidence, the court found the respondent's case more convincing and the claimant failed to contradict the gross misconduct case.

p. 2
02

Whether the claimant is entitled to the relief sought

Holding

He is not; having lost on unlawful termination he is disentitled to the reliefs including notice pay, 12 months' compensation and certificate of service

Reasoning

The entitlement to terminal dues and statutory compensation flows from a finding of unfair or unlawful termination. Since the court found the termination lawful on grounds of gross misconduct, the foundation for the reliefs fell away and the claimant became disentitled to the declaration, terminal benefits, compensation and certificate of service.

p. 2

Legal principles established

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  • A claimant who fails on the claim of unfair termination is disentitled to the reliefs sought
  • Termination on grounds of gross misconduct (breaking into a hotel room and stealing) constitutes lawful termination under section 45(2)(b) of the Employment Act

Court orders

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  1. 1.Claim dismissed
  2. 2.Each party bears their own costs of the claim

Authorities

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Legislation

  • Employment Actsection 9
  • Employment Actsections 40 and 41
  • Employment Actsection 45 (2) (b) (i)
  • Employment Actsection 51
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (Court's inherent jurisdiction over employment disputes; no specific constitutional provision cited)

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, "Deus Onyango Otieno v Decasa Hotel Limited [2018] KEELRC 2555 (KLR)", Case Analysis (2018). Cause No. 17 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2555/eng@2018-12-03

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