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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 27 (KLR)

Richard Nyandika Omechi v Real Careers Limited [2019] KEELRC 27 (KLR)

Employment and Labour Relations Court
19 December 2019
MOMaureen Onyango
1,335 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who fires a worker without a hearing or proof of misconduct must pay compensation, because arguments in court cannot replace actual evidence.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a casual worker from September 2014 at a monthly salary of Kshs.14,000, claimed his employment was terminated in March 2016 without notice or a hearing, and sought notice pay, leave allowances, service pay, NSSF deductions said to be unremitted, twelve months' compensation, a certificate of service, interest and costs. The respondent denied the claim, asserting that the claimant absconded duty for a week without leave, refused to show cause on return, and was lawfully summarily dismissed for refusal to obey a lawful order under Section 44(4)(e) of the Employment Act. The parties, having failed to settle, proceeded by written submissions on pleadings, witness statements and documents. The court framed two issues: whether the termination was unfair and entitlement to remedies. It held that the respondent filed no witness statement and produced no documents to prove absence from duty or a disciplinary hearing; submissions are not evidence. Relying on Sections 41, 43, 45, 10(7) and 47(5) of the Employment Act, the court found the claimant had discharged his burden while the respondent had not, and declared the termination unfair. On remedies it awarded notice pay of Kshs.14,000, leave for 19 months at 1.75 days per month (Kshs.17,904), service pay of Kshs.7,000, and four months' salary as compensation (Kshs.56,000), totalling Kshs.94,904, plus a certificate of service, costs and interest from the date of judgment. The NSSF refund claim of Kshs.6,400 was dismissed for lack of proof.

Key legal issues

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01

Whether termination was fair under Sections 41, 43 and 45 of the Employment Act

Holding

Termination was unfair - the respondent neither proved a valid reason nor compliance with the hearing procedure

Reasoning

Section 41 requires procedure, Section 43 valid reasons, and Section 45 renders non-compliance unfair termination. The respondent filed no witness statement and produced no documents proving absence from duty or a disciplinary hearing. Submissions cannot substitute evidence. The claimant's uncontroverted witness statement stood as the evidence on record.

p. 2
02

Allocation of the burden of proof under Section 47(5)

Holding

Claimant discharged his burden; respondent failed to justify the grounds for termination

Reasoning

Section 47(5) places the burden of proving unfair termination on the employee and justifying grounds on the employer. The claimant's witness statement established the circumstances of termination; the respondent's failure to keep or produce records under Sections 10 and 74 meant it did not discharge its burden.

p. 2
03

Entitlement to remedies for unfair termination

Holding

Claimant entitled to notice pay, leave, service pay, certificate of service and compensation capped at four months' salary

Reasoning

Having found unfair termination, the court awarded notice pay, untaken annual leave, and service pay since there was no proof of NSSF membership or other retirement scheme. Compensation was assessed at four months' salary considering length of service and the manner of termination under Section 49(4).

p. 3

Legal principles established

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  • Submissions are not evidence; a party cannot adduce evidence through submissions
  • Where an employer fails to produce written particulars of employment, the burden of proving or disproving an alleged term shifts to the employer

Court orders

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  1. 1.Notice pay Kshs.14,000
  2. 2.Leave for 19 months at 1.75 days per month being 33.25 days, Kshs.17,904
  3. 3.Service pay Kshs.7,000 for one complete year
  4. 4.Compensation equivalent to 4 months' salary in the sum of Kshs.56,000 under Section 49(4) of the Employment Act
  5. 5.Total award of Kshs.94,904.00
  6. 6.The respondent to issue a certificate of service to the claimant
  7. 7.Respondent to pay claimant's costs; interest at court rates from date of judgment till payment in full
  8. 8.Prayer for refund of Kshs.6,400 on account of NSSF deductions dismissed
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act

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, "Richard Nyandika Omechi v Real Careers Limited [2019] KEELRC 27 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/27/eng@2019-12-19

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