Ondicho Meshack Rakamba v Kuldip Singh & 4 others [2019] KEELRC 48 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the 1st to 4th Respondents, being employees of the 5th Respondent, were properly sued
They were properly sued as agents of the 5th Respondent who contributed to the incidents leading to the Claimant's dismissal
The court applied Makau J's reasoning in Kenya Hotels that an employer includes agents and managers under section 2 of the repealed Employment Act, and the Court of Appeal's test in Mombasa Bricks & Tiles that a party is properly joined if their presence is necessary to determine the real issues. The 1st to 4th Respondents, as Director, Inspector, Auditor and Accountant, were agents whose actions led to the dismissal.
Whether the 5th Respondent followed due procedure before terminating the Claimant's employment
The dismissal was unprocedural; the employer did not comply with section 41 of the Employment Act before summary dismissal under section 44
Section 44 permits summary dismissal for gross misconduct, but section 41 requires compliance with procedure before summary dismissal. The 5th Respondent did not rebut the Claimant's averments that it summarily dismissed him without notice, without a disciplinary hearing and without an opportunity to defend himself. Following Donald Odeke v Fidelity Security Ltd, an unheard employee's termination is ipso facto unfair.
What reliefs the Claimant is entitled to
Notice pay, maximum compensation of 12 months' salary under section 49(4), certificate of service, and refund of Kshs.47,000 and Kshs.5,000 for personal items; other claims failed for want of proof
Guided by section 49(4), and considering 10 years of service, the circumstances of termination and pay of Kshs.16,500, the court awarded maximum compensation. Certificate of service flows from section 51 of the Employment Act. Overtime and PAYE claims, the contractual honor, cash bail refund, medical costs, punitive damages and criminal trial costs were not proved, and salary post-dismissal is not provided for in law or contract.
Legal principles established
#- Before summary dismissal under section 44(4) of the Employment Act, the employer must comply with the procedure in section 41, including notice and a hearing; failure to hear an employee renders termination ipso facto unfair
- An agent, foreman, manager or factor of an employer is, by the definition of 'employer' in the repealed Employment Act, properly suable alongside the principal for obligations under an employment contract
Court orders
#- 1.Judgment entered for the Claimant against the Respondents as follows: (1) Notice Kshs.16,500; (2) Compensation Kshs.198,000; (3) Refund of Kshs.47,000 owed to the claimant; (4) Kshs.5,000 being value of claimant's property left in respondent's office; (5) Costs of Kshs.50,000; total Kshs.316,500.00; (6) Certificate of service
- 2.All prayers not proved dismissed
- 3.Costs assessed at Kshs.50,000 to cover reasonable disbursements and incidental expenses of the suit
- Jurisdiction invoked
- Jurisdiction of the Employment and Labour Relations Court over employment disputes; the Petition was deemed a Claim by the court on 13th November 2018
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mugo v Technical Institute Group of Schools & another (Employment and Labour Relations Cause E428 of 2022) [2024] KEELRC 1210 (KLR)[2024] KEELRC 1210 (KLR)17 May 2024
Cite this brief
#Cite this brief
Caselaw, "Ondicho Meshack Rakamba v Kuldip Singh & 4 others [2019] KEELRC 48 (KLR)", Case Analysis (2019). Petition dated 10th March 2017 / Statements of Claim dated 22nd January 2019 and 11th February 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/48/eng@2019-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.