James Ooko Seda v Adsite Limited [2019] KEELRC 471 (KLR)
The bottom line
#A Kenyan employer that fires a worker without written records of misconduct or a fair hearing must pay up to 12 months' salary in compensation.
What this practically means
#Executive summary
#Key legal issues
#Validity of reason for termination
The Respondent had no valid reason to terminate the Claimant as it produced no documents to show lateness, erratic attendance or warnings
The Respondent alleged the Claimant was insubordinate, reported late and left early, and had been warned severally. However, RW1 admitted in cross-examination that there were no records in court to confirm the lateness and no written warnings existed. Under Section 43 of the Employment Act, the employer must prove the reasons for termination; failing this, the termination is deemed unfair under Section 45.
Procedural fairness
The termination violated Section 41 of the Employment Act as the Claimant was not taken through any disciplinary process and was terminated verbally without a termination letter
The Claimant testified he was not given an opportunity to be heard and no disciplinary action was taken prior to the verbal termination. RW1 admitted there was no termination letter served on the Claimant to explain the reasons for termination. Section 41 requires notification and a hearing before termination on grounds of misconduct, which was not done.
Entitlement to reliefs
The Claimant was awarded one month's notice pay, 12 months' compensation for unfair termination, and house allowance at 15% for 3 years, totaling Kshs. 238,750
Having found the termination unfair and unjustified under Section 45(2) for lack of proper reasons and want of due process, the court found for the Claimant and applied the maximum 12 months' compensation under Section 49 of the Employment Act. Notice pay was granted since no summary dismissal procedure was followed. House allowance was limited to 3 years on limitation grounds.
Legal principles established
#- The employer bears the burden of proving the reason or reasons for termination, failing which the termination is deemed unfair
- An employee must be taken through a disciplinary process before termination
Court orders
#- 1.1 month's salary in lieu of notice of Kshs. 12,500
- 2.12 months' compensation for unlawful termination of Kshs. 150,000 (12 x 12,500)
- 3.House allowance at 15% of salary for 3 years of Kshs. 67,500 (15% x 12,500 x 36), the other 3 years being time barred
- 4.Total award of Kshs. 238,750
- 5.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Ooko Seda v Adsite Limited [2019] KEELRC 471 (KLR)", Case Analysis (2019). Cause No 1825 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/471/eng@2019-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.