Joseph Ogembo Mose v Lochab Bros Company Ltd [2019] KEELRC 1096 (KLR)
The bottom line
#A Kenyan court awarded a night guard over Ksh.328,000 because his employer skipped proper notice, a hearing, and record-keeping.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in termination
The termination was unfair as no notice was issued and the claimant was not given a hearing
The court held that under sections 35, 41 and 45 of the Employment Act, 2007 an employer must issue notice and invite the employee to a hearing to give him a chance to defend himself. Even where valid grounds exist, failure to follow this procedure renders the termination unfair. The respondent, absent at the hearing and having filed no work records, offered no proof of procedural compliance.
Employer's duty to produce work records
Failure to file work records left the court with only the claimant's uncontroverted evidence
Section 10 of the Employment Act obliges an employer notified of a suit to file work records or evidence necessary to disprove the employee's allegations. Although the respondent filed a defence asserting gross misconduct and denied employing the claimant, no work records were submitted. The respondent's repeated non-attendance despite service meant the claimant's evidence stood unchallenged.
Entitlement to overtime, rest days and leave pay
Unchallenged claims for overtime and rest days were awarded as tabulated; leave pay in lieu awarded under section 28
Overtime was not materially challenged and the court awarded the tabulated Ksh.164,824.65. Rest days worked attract compensation under section 27 where not taken, awarded at Ksh.146,510.80. Leave days earned under section 28, if not taken, attract payment in lieu of Ksh.10,132.00 as claimed.
Double recovery for public holidays and compensation
Public holiday pay and general compensation for unfair termination were declined
The court found the public holiday claim could not be distinguished from the overtime and rest days claims; awarding all would be double pay and unjust enrichment. Further, with the substantial awards made, additional compensation under the Act was deemed unnecessary as the awards constituted adequate compensation.
Legal principles established
#- Termination of employment, even where valid reasons exist, must follow fair procedure including notice and a hearing; otherwise it is unfair under section 45 of the Employment Act
- An employer notified of a suit must file work records and evidence necessary to disprove the employee's allegations under section 10 of the Employment Act
Court orders
#- 1.Judgment entered for the claimant against the respondent in the sum of notice pay Ksh.7,600.00
- 2.Overtime pay Ksh.164,824.65
- 3.Pay for rest days Ksh.146,510.80
- 4.Annual leave pay Ksh.10,132.00
- 5.No orders on costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes under Article 162(2) of the Constitution (implied from the court); Employment Act, 2007 provisions applied
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Ogembo Mose v Lochab Bros Company Ltd [2019] KEELRC 1096 (KLR)", Case Analysis (2019). Cause No. 61 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1096/eng@2019-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.