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ELRCPartially AllowedELRC Cause No. 731 of 2015· [2019] KEELRC 1066 (KLR)

Lilian Akoth Otuoma v Mohan Oysterbay Drinks Kenya Limited [2019] KEELRC 1066 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
11 July 2019
1,541 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a dismissed employee over Kshs. 255,000 because her employer could not prove misconduct and never gave her a hearing.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from about January 2014 until March 2015, sued for unfair termination claiming underpayments, damages, salary for days worked, notice pay, gratuity, costs and interest. She testified she was a Merchandiser/Salesperson earning Kshs. 14,000 monthly plus Kshs. 300 daily transport, and was terminated on 11th March 2015 without notice or a chance to be heard. The Respondent asserted she was a Cleaner whose performance was unsatisfactory, that she absconded duty and posted false photographs to its WhatsApp Group, and that her termination complied with Section 35 of the Employment Act. Its witness, RW1, conceded in cross-examination that the alleged photographs were not produced in court, that no document showed the Claimant was a cleaner, and that no letter summoned her to a disciplinary hearing, with the termination notice issued after the termination. The court framed three issues: valid reasons, due process, and remedies. It found no valid reasons, as the Respondent's allegations were unsubstantiated by evidence or independent witnesses, and no due process, since Section 41 of the Employment Act requires an opportunity to answer charges before termination. The court declared the dismissal unfair and unjust and awarded the Claimant one month's notice pay (Kshs. 14,000), gratuity of 15 days' salary for two years (Kshs. 14,000), salary for 11 days worked (Kshs. 8,737.08), and 10 months' salary as compensation for unfair termination (Kshs. 140,000), totalling Kshs. 255,371, plus costs and interest at court rates from the date of judgment.

Key legal issues

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01

Whether there were valid reasons to dismiss the Claimant

Holding

There were no valid reasons to warrant dismissal; the Respondent's allegations of absconding and posting false photos were unsubstantiated

Reasoning

The Respondent alleged the Claimant absconded duty and posted old photographs to its WhatsApp Group, but neither the photographs nor any independent witness were produced in court. RW1 conceded the photos were not in court. Suspicion alone, without corroborating evidence, could not sustain the dismissal, so the court found no valid reasons existed.

p. 3
02

Whether due process was followed in the termination

Holding

No disciplinary process was followed; the termination was procedurally unfair under Section 41 of the Employment Act

Reasoning

Section 41 requires that an employee be accorded an opportunity to answer charges before termination. The Claimant was never summoned to a disciplinary hearing or informed her services were no longer required in accordance with the statute. RW1 admitted no summons letter existed. The termination notice dated 15th April 2015 was issued after the 15th March 2015 termination.

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What remedies flow from the unfair termination

Holding

The Claimant was awarded one month's notice pay, gratuity for two years, salary for 11 days worked, and 10 months' salary as compensation, with costs and interest

Reasoning

Having found both substantive and procedural unfairness, the court awarded notice pay of one month, gratuity of 15 days' salary per year worked for two years, salary for 11 days worked in March 2015, and 10 months' salary as compensation for the unlawful and unfair termination, plus costs and interest at court rates.

p. 3

Legal principles established

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  • An employer must accord an employee an opportunity to answer charges before termination, as envisaged by Section 41 of the Employment Act
  • An employer alleging misconduct (such as absconding duty or falsified reports) bears the evidential burden of proving it, including producing the evidence and calling witnesses

Court orders

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  1. 1.1 month salary in lieu of notice = 14,000/=
  2. 2.Gratuity of 15 days salary for years worked = ½ x 14,000 x 2 = 14,000/=
  3. 3.Salary for 11 days worked in March 2015 = 8,737.08
  4. 4.10 months salary as compensation for unlawful and unfair termination = 14,000 x 10 = 140,000/= (total award Kshs. 255,371)
  5. 5.Respondent to pay costs of the suit plus interest at Court rates from the date of the judgment

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 35
  • Employment Act 2007Section 41
  • Regulation of Wages (General) (Amendment) Order 2013
  • Minimum Wage Order

Cases cited (2)

  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Limited
    [2013] eKLR
  • Wrigley Company (East Africa) Limited v Attorney General & 2 Others & another
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations disputes); claim filed as a Memorandum of Claim under the Employment Act 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lilian Akoth Otuoma v Mohan Oysterbay Drinks Kenya Limited [2019] KEELRC 1066 (KLR)", Case Analysis (2019). ELRC Cause No. 731 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1066/eng@2019-07-11

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