Henry Owino Obonyo v Alloice Odhiambo Lumutu & another [2019] KEELRC 557 (KLR)
The bottom line
#Kenya's Employment Court ruled Kenya Airways unfairly sacked two staff who were never given the audit report their case was built on, awarding pay and reinstatement.
What this practically means
#Executive summary
#Key legal issues
#Validity of reasons for termination
There were no valid reasons to terminate either Claimant; the allegations were not conclusively proved and the forensic audit report was never produced in court or supplied to the Claimants before termination.
The 2nd Claimant was exonerated of any directorship or employment with Henpen, confirmed by Registrar of Companies records, and the disciplinary panel found no conflict of interest in Buseka. The 1st Claimant was exonerated of most charges including the confidentiality charge later cited in the termination letter. The forensic report underpinning the charges was never produced in court and reached the Respondent only after termination.
Fairness of the disciplinary process
The disciplinary process was procedurally unfair under section 4(3)(a) and (g) of the Fair Administrative Action Act, and the 2nd Claimant's panel composition was improper under section 7(2)(a).
The Claimants were not given the forensic audit report or the materials relied upon. The show cause letter was issued by an officer contrary to the HR Manual, the Technical Director acted as prosecutor and sat on appeal, and the 2nd Claimant's Controlling Manager did not sit on the panel as the Manual required. These breaches of the FAAA and the Respondent's own manual rendered the hearing unfair.
Reinstatement
Reinstatement was awarded to the 2nd Claimant because of his highly specialised skills and proved inability to secure alternative employment; it was refused to the 1st Claimant who did not establish inability to find other work.
The 2nd Claimant, aged 43, proved that two job offers (Jambojet and Salamain) were rescinded because of his termination and that he is trained on aircraft types operated only by the Respondent in Kenya. Reinstatement was therefore the only remedy that would restore him. The 1st Claimant gave no evidence of failed job searches.
Legal principles established
#- An employer must furnish an employee facing disciplinary action with the information, materials and evidence to be relied upon, including any investigative report forming the basis of the charges
- A termination is unfair where the employer fails to prove a valid reason and a fair procedure, per section 45(2) of the Employment Act
Court orders
#- 1.Reinstatement of the 2nd Claimant without loss of salary and benefits with effect from the time of termination, to continue in employment until retirement age or any other good cause
- 2.Compensation to the 2nd Claimant equivalent to 10 months' salary (10 x 587,789 = 5,877,890/=) less statutory deductions
- 3.Compensation to the 1st Claimant equivalent to 10 months' salary (10 x 347,128 = 3,471,280/=) less statutory deductions
- 4.Costs awarded to the Claimants
- 5.Interest on the decretal amount with effect from the date of judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction over claims of unfair termination under the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Owino Obonyo v Alloice Odhiambo Lumutu & another [2019] KEELRC 557 (KLR)", Case Analysis (2019). Cause No 1515 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/557/eng@2019-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.