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ELRCPartially AllowedCause No. 2128 of 2011· [2019] KEELRC 1246 (KLR)

Godfrey Otwori Onkundi v Ravine Roses Limited [2019] KEELRC 1246 (KLR)

Employment and Labour Relations Court
27 June 2019
HWHellen S. Wasilwa
2,556 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed from 2008 as a general worker and later a mechanic, sued Ravine Roses Limited for unfair termination arising from events of September to October 2011, when he was suspended pending investigations into loss of company property (siphoning of diesel) and then terminated on 22 October 2011. He sought a declaration of unfair termination, notice pay, salary for October, 12 months' compensation, overtime, gratuity, damages for discrimination, a certificate of service, costs and interest. He argued the termination breached Sections 41 and 45 of the Employment Act, 2007 and Article 27 of the Constitution. The Respondent admitted the employment relationship but asserted the Claimant absconded duty after being cleared of theft allegations, denied discrimination, and contended the Claimant sued the wrong party given the Karen Roses documentation, and urged dismissal with costs. The court framed three issues: the correct party, the lawfulness of the termination, and remedies. It held the Respondent was rightly sued, noting the Registrar of Companies' evidence linking Karen Roses and Ravine Roses, though its wording referred to Karen Roses. On the merits, it found the Claimant was never invited to a disciplinary hearing (confirmed by both defence witnesses), was dismissed verbally without a termination letter, and rejected the abscondment defence because the Respondent never raised it when replying to the demand letter. It awarded one month's notice pay (Kshs. 9,438), eight months' compensation (Kshs. 75,504), a certificate of service, plus costs and interest at court rates from the judgment date. Other heads of claim were not granted.

Key legal issues

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01

Whether the Respondent was the correct party to the suit

Holding

The court held the Respondent was rightly sued, despite the evidence that the employment documents came from Karen Roses Limited.

Reasoning

CW2, the Registrar of Companies, testified that Ravine Roses is registered as a business name but is a legal entity capable of contracting, and that Karen Roses is the proprietor of Ravine Roses. Although the claimant's appointment, confirmation letters and payslips were from Karen Roses, the court concluded that the Respondent was correctly sued, though the reasoning conflates the two entities.

p. 4
02

Whether the Claimant was lawfully terminated

Holding

The termination was unfair and unlawful; the claim that the Claimant absconded was rejected as untrue.

Reasoning

RW1 admitted the Claimant was never invited to any disciplinary hearing, and RW2 confirmed he did not go through any disciplinary process. No evidence supported the allegation of abscondment; the Respondent's reply to the demand letter of 25 October 2011 never raised abscondment. The court found the Claimant was verbally dismissed without a termination letter or hearing.

p. 4
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What remedies should be awarded

Holding

The court awarded one month's salary in lieu of notice, eight months' salary as compensation for unfair termination, a certificate of service, costs and interest.

Reasoning

Having found the termination unfair, the court exercised its discretion to award notice pay equivalent to one month's salary of Kshs. 9,438 and compensation of eight months' salary totalling Kshs. 75,504, plus a certificate of service, rather than the 12 months' compensation, overtime and gratuity claimed.

p. 5

Legal principles established

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  • An employer who terminates employment without notice, without a termination letter and without any disciplinary hearing unfairly and unlawfully terminates the employee, contrary to Sections 41 and 45 of the Employment Act, 2007.
  • An allegation that an employee absconded duty must be raised contemporaneously; a failure to raise it in response to a demand letter undermines the defence.

Court orders

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  1. 1.1 month salary in lieu of notice of Kshs. 9,438/-
  2. 2.8 months' salary as compensation for unlawful termination, Kshs. 75,504/-, total award Kshs. 84,942/-
  3. 3.Claimant to be issued with a Certificate of Service
  4. 4.Respondent to pay costs and interest at Court rate with effect from the date of the judgment

Authorities

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Legislation

  • Employment ActSections 41 and 45
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 159
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41 and 45 relied on by the Claimant)

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, "Godfrey Otwori Onkundi v Ravine Roses Limited [2019] KEELRC 1246 (KLR)", Case Analysis (2019). Cause No. 2128 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1246/eng@2019-06-27

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