Dominic Abala Midigo v AA Lodges [2019] KEELRC 584 (KLR)
The bottom line
#A Kenyan court awarded a sacked financial manager over Kshs 2 million because his employer fired him without a valid reason or a chance to defend himself.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reasons for termination
The Respondent failed to prove a valid reason; the Claimant did not sign or authorise the payments complained of and was in fact the whistle-blower who reported the loss.
The dismissal letter cited Section 44(4)(e) for neglect of work leading to losses of Kshs. 1.3 million and 77 million. RW1 admitted in cross-examination that the KWS invoice was not signed by the Claimant, that no document authorising payment bore the Claimant's signature, and that it was the Claimant who reported the loss. The Respondent also earlier alleged abscondment, contradicted by its own termination letter. The Respondent filed no documents proving the alleged Kshs. 78 million loss.
Procedural fairness of the termination
The termination breached Section 41 of the Employment Act as the Claimant was given no notice and no opportunity to explain himself.
Section 41(1) requires an employer, before terminating on grounds of misconduct, to explain the reasons to the employee and afford him a companion of his choice; Section 41(2) requires the employer to hear and consider representations before summary dismissal under Section 44(3) or (4). The Claimant testified he was never given warnings, notice or a chance to explain, and was escorted out of the gate upon termination. The Respondent relied only on a contractual grievance clause.
Remedies for unfair termination
The Claimant was awarded one month's salary in lieu of notice, salary for 8 days worked in February 2016, 12 months' salary as compensation, a certificate of service, costs and interest.
Having found the dismissal both substantively and procedurally unfair, the court exercised its discretion under the Employment Act to award the pleaded reliefs. The notice pay of Kshs. 155,000/= and 12 months' compensation of Kshs. 1,860,000/= followed the pleaded figures; the February salary was recomputed at 8/30 rather than the Claimant's 8/26 formula, yielding Kshs. 41,333/= instead of Kshs. 47,692/=.
Legal principles established
#- An employer must both prove a valid and fair reason for termination and follow fair procedure under Sections 41 and 45 of the Employment Act; failure on either limb renders termination unfair
- A claimant who was the whistle-blower reporting the loss cannot be said to have been lawfully dismissed for the loss he reported
Court orders
#- 1.Payment of one month's salary in lieu of notice of Kshs. 155,000/=
- 2.Payment of salary for 8 days worked in February 2016 of Kshs. 41,333/=
- 3.Payment of 12 months' salary as compensation for unlawful and unfair termination of Kshs. 1,860,000/= (total award Kshs. 2,056,333/=)
- 4.The Respondent to issue the Claimant with a certificate of service
- 5.The Respondent to pay costs of the suit plus interest at Court rates from the date of the judgment
- Jurisdiction invoked
- Articles 41, 47, 50 and 28 of the Constitution of Kenya and the Employment Act 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dominic Abala Midigo v AA Lodges [2019] KEELRC 584 (KLR)", Case Analysis (2019). Cause No 445 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/584/eng@2019-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.