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ELRCPartially AllowedCause No 1883 of 2011· [2019] KEELRC 1030 (KLR)

Jared Okuda Oduora v Nakumatt Holdings Limited [2019] KEELRC 1030 (KLR)

Employment and Labour Relations Court
19 July 2019
MOMaureen Onyango
2,390 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 dismissed employee over Kshs.359,000 because his employer could not prove he was given a fair hearing before dismissal.

What this practically means

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Executive summary

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The Claimant, Jared Okudo Oduora, sued for unfair and unlawful termination of his employment and unpaid terminal dues. He was employed on 20th June 2006 as a shop attendant and cook at the Respondent's Kisumu branch on permanent terms earning Kshs.30,765 gross, and was summarily dismissed on 20th June 2011, allegedly for rudeness to a customer and fighting with a colleague. The Respondent asserted that the dismissal was for gross misconduct in accordance with his contract, that he was a habitual absentee, and that a hearing was accorded. The Claimant denied the misconduct, denied signing an admission statement, and denied being accorded a hearing. The court framed two issues: whether the termination was valid procedurally and substantively, and whether the Claimant was entitled to the reliefs sought. The court found the Respondent had a valid reason for termination, as the alleged conduct amounted to gross misconduct, but held the termination procedurally unfair because no evidence of a disciplinary hearing, such as minutes, was tendered, contrary to Section 41 of the Employment Act. Relying on Walter Ogal Anuro v Teachers Service Commission, Francis Mbugua Boro v Smartchip Dynamics Limited, and David Njoroge Muiru v Elsa Limited, the court awarded one month's salary in lieu of notice (Kshs.30,795), 20 days' salary for June 2011 (Kshs.20,520), and 10 months' compensation (Kshs.307,950), totalling Kshs.359,235, plus costs and interest from the date of judgment. The overtime claim failed for lack of evidence, and severance pay was not awarded.

Key legal issues

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01

Substantive validity of the termination

Holding

The Respondent had a valid reason for terminating the Claimant's services based on gross misconduct

Reasoning

The reason cited was that the Claimant was rude to a customer and fought with a colleague during working hours. The court found these grounds, on which the Respondent acted, amounted to gross misconduct and therefore constituted a valid reason under Section 45(2) of the Employment Act.

p. 3
02

Procedural fairness under Section 41 of the Employment Act

Holding

The termination was procedurally unfair as no hearing was accorded or proved

Reasoning

Section 41 requires the employer to explain the reasons for termination to the employee and allow a fair hearing. The Respondent alleged a hearing was accorded but tendered no minutes of a disciplinary hearing or other valid evidence. RW2 confirmed there was a disciplinary hearing at head office but he was not called as a witness. The termination was thus unfair under Sections 41 and 43.

p. 4
03

Remedies for unfair termination

Holding

Claimant awarded notice pay, salary for 20 days worked, and 10 months' compensation; overtime and severance pay refused

Reasoning

Having found unfair termination, the court awarded one month's salary in lieu of notice, 20 days' salary for June 2011, and 10 months' compensation under Section 49, considering long service and the manner of termination. The overtime claim failed for lack of evidence, and severance pay was not awarded.

p. 4

Legal principles established

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  • For a termination to be fair there must be both substantive justification and procedural fairness
  • An employer asserting that a disciplinary hearing was held must prove it with evidence such as minutes

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs.30,795
  2. 2.20 days worked in June 2011 of Kshs.20,520
  3. 3.10 months compensation for wrongful dismissal of Kshs.307,950 (30,795 x 10 months), total award Kshs.359,235
  4. 4.Costs of the suit to the Claimant
  5. 5.Interest on the award from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 47(3)
  • Employment Act, 2007Section 49
  • Employment Act, 2007Section 41(2)

Cases cited (8)

  • Bamburi Cement Limited Vs William Kilonzi
    (2016) eKLR
  • Nation Media Group Limited Vs Onesmus Kilonzo
    (2017) eKLR
  • Erick Karanja Gakenyo & Another Vs Samson Gathimba
    (2011) eKLR
  • John Kebaso Mose -V- Uchumi Supermarket
    (2017) eKLR
  • Kennedy Maina Mirera Vs Barclays Bank Kenya Limited
    (2018) eKLR
  • Walter Ogal Anuro –v- Teachers Service Commission
    (2013) eKLR
  • Francis Mbugua Boro -Vs- Smartchip Dynamics Limited
    (2017) eKLR
  • David Njoroge Muiru -vs- Elsa Limited
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 44, 45, 47(3) and 49 relied upon)

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, "Jared Okuda Oduora v Nakumatt Holdings Limited [2019] KEELRC 1030 (KLR)", Case Analysis (2019). Cause No 1883 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1030/eng@2019-07-19

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