Lilian Akoth Otuoma v Mohan Oysterbay Drinks Kenya Limited [2019] KEELRC 1066 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether there were valid reasons to dismiss the Claimant
There were no valid reasons to warrant dismissal; the Respondent's allegations of absconding and posting false photos were unsubstantiated
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.
Whether due process was followed in the termination
No disciplinary process was followed; the termination was procedurally unfair under Section 41 of the Employment Act
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.
What remedies flow from the unfair termination
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
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.
Legal principles established
#- 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
#- 1.1 month salary in lieu of notice = 14,000/=
- 2.Gratuity of 15 days salary for years worked = ½ x 14,000 x 2 = 14,000/=
- 3.Salary for 11 days worked in March 2015 = 8,737.08
- 4.10 months salary as compensation for unlawful and unfair termination = 14,000 x 10 = 140,000/= (total award Kshs. 255,371)
- 5.Respondent to pay costs of the suit plus interest at Court rates from the date of the judgment
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kabansora Millers Limited v Oracho (Employment and Labour Relations Appeal E059 of 2022) [2024] KEELRC 1034 (KLR)[2024] KEELRC 1034 (KLR)7 May 2024applied
Cite this brief
#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.