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ELRCPartially AllowedStatement of Claim dated 9th April 2018 (number not stated in judgment)· [2019] KEELRC 701 (KLR)

Cevine Otieno Owino v Coast Bus (Msa) Limited [2019] KEELRC 701 (KLR)

Employment and Labour Relations Court
3 October 2019
1,576 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a bus conductor 12 months' salary because his employer fired him without a hearing or valid reason.

What this practically means

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Executive summary

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Cevine Otieno sued Coast Bus (Msa) Limited for unlawful termination of employment as a Bus Conductor/Loader. He claimed he was employed from 2007, confirmed by a written contract effective 1st January 2016, and summarily terminated on or about 6th January 2018 without justifiable cause or a hearing. He sought a declaration of unlawful termination, twelve months' compensation of Kshs.219,360, notice pay of Kshs.18,280, costs and interest. The Respondent failed to enter appearance, and the court certified the claim undefended, proceeding by pleadings, statements and submissions. Relying on authorities on undefended claims, the court found the claimant had proved the employment relationship through payslips, his averments remaining uncontroverted. It held the termination substantively and procedurally unfair: the reason given (missing from work for 20 minutes and prior rudeness) was not valid and fair, and the mandatory procedure under section 41 of the Employment Act was not followed. The claimant was awarded maximum compensation of twelve months' salary under section 49, quantified at Kshs.192,660 based on a monthly gross pay of Kshs.16,055. Notice pay was refused because the termination letter indicated one month's notice was given. The respondent was ordered to pay the claimant's costs, with interest on the decretal sum at court rates from the date of judgment.

Key legal issues

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01

Whether termination was substantively and procedurally unfair

Holding

Termination was unfair both substantively and procedurally; the reason given was not valid and fair and no opportunity to be heard was accorded

Reasoning

The claim was undefended, so the claimant's averments stood uncontroverted. He established the employment relationship through payslips. The reasons in the termination letter (missing from work for 20 minutes, previous rudeness) did not constitute a valid and fair reason, and no hearing under section 41 of the Employment Act was conducted, contrary to the mandatory procedure confirmed in the Kenfreight case.

p. 2
02

Whether the claimant is entitled to notice pay

Holding

Not entitled, having been given one month's notice under the termination letter

Reasoning

The court read the termination letter, which stated services would stop after a one-month notice period, as meaning notice was given. Notice pay under the claim was therefore unnecessary. The only remedy awarded was compensation under section 49 of the Employment Act.

p. 2
03

Entitlement to compensation for unfair termination

Holding

Maximum compensation of 12 months' gross salary (Kshs.192,660) awarded

Reasoning

In assessing compensation under section 49, the court considered the claimant's long service of about 11 years, the respondent's failure to respond despite service, absence of other terminal benefits, and the circumstances of termination. The maximum of 12 months was awarded based on gross monthly pay of Kshs.16,055.

p. 2

Legal principles established

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  • In an undefended claim, the claimant must establish all the facts of the claim, including the existence of an employment relationship, before establishing unfair termination
  • Failure by an employer to follow the mandatory procedure under section 41 of the Employment Act renders a termination unfair

Court orders

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  1. 1.A finding that the Claimant's termination was substantively and procedurally unfair
  2. 2.The Respondent to pay the Claimant maximum compensation of 12 months' salary in the sum of Kshs.192,660 (based on monthly gross pay of Kshs.16,055)
  3. 3.The Respondent to pay the Claimant's costs
  4. 4.The decretal sum to attract interest at court rates from the date of judgment
  5. 5.Refusal of payment in lieu of notice as the termination letter indicated one month's notice was given

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45
  • Employment ActSection 41
  • Employment ActSection 49

Cases cited (6)

  • Kenya Union of Commercial Food & Allied Workers –v- Meru North Farmers Sacco Limited
    [2014] eKLR
  • Kenfreight (E.A.) Limited -V- Benson K. Nguti
    [2016] eKLR
  • Monica Kanini Mutua -V- Al-Arafat Shopping Centre & another
    [2018] eKLR
  • Elijah Kioko Kitavi -V- Allied Plumbers Limited
    [2019] eKLR
  • CMC Aviation Limited vs. Cruisair Limited (No 1)
    (1978) KLR 103, (1976-80) 1 KLR 835
  • Herman Ilangarwa Shidakwa -v- Armati Security Solutions Limited
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination claims under the Employment Act (Sections 41, 43, 45, 49 cited)

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, "Cevine Otieno Owino v Coast Bus (Msa) Limited [2019] KEELRC 701 (KLR)", Case Analysis (2019). Statement of Claim dated 9th April 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/701/eng@2019-10-03

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