George Osero v Attorney General & 2 others [2019] KEELRC 1272 (KLR)
The bottom line
#A Kenyan court ruled a police officer's dismissal unfair because he was never given a hearing, awarding him maximum compensation for the wrongful termination.
What this practically means
#Executive summary
#Key legal issues
#Whether due process was followed before dismissal
Due process was not followed; the Claimant was condemned unheard with no disciplinary proceedings produced
The court noted that disciplinary procedures for Administration Police officers are set out in the law and that Section 41 of the Employment Act requires explanation and hearing before termination. Nothing was presented in court showing the Claimant was summoned to a disciplinary hearing, nor were any minutes or proceedings produced showing he was found guilty. The Respondents called no witnesses, leaving the Claimant's case uncontroverted. The dismissal was therefore both procedurally unfair and unjustified.
Whether the dismissal was unfair under Section 45(2) of the Employment Act
The dismissal was unfair and unjustified as the Respondent failed to prove valid reason and fair procedure
Section 45(2) places the burden on the employer to prove that the reason for termination was valid and fair, related to conduct, capacity or compatibility or operational requirements, and that fair procedure was followed. The Respondents offered no evidence, so no valid reason or fair procedure was proved. The court found the dismissal unfair and unjustified and proceeded to consider remedies under its discretion.
What remedies are appropriate
Maximum compensation of 12 months' salary, one month's notice pay, pension dues and costs
Given the callous manner in which the Respondents' officers condemned the Claimant without due regard to law and evidence, the court found him entitled to maximum compensation. It converted the unlawful dismissal to a normal termination and awarded 12 months' salary as compensation, one month's salary in lieu of notice, payment of pension dues, and costs with interest.
Effect of Respondents' failure to call evidence
Submissions without evidence cannot defeat an uncontroverted claim
The Respondents filed a response and submissions but called no witness. Relying on Court of Appeal authority in CA No. 140/2008 citing Der Raj Sharma v Reginam and Michael Hausa v the State on documents marked for identification, the court held that submissions are not evidence, so the Respondents offered no evidence against the Claimant's case, which therefore remained uncontroverted.
Legal principles established
#- An employer must follow fair procedure, including explanation and hearing, before terminating an employee on grounds of misconduct
- Submissions filed without calling evidence cannot constitute evidence against an uncontroverted claim
- A termination is unfair where the employer fails to prove a valid and fair reason and fair procedure
Court orders
#- 1.Declaration that the dismissal was unlawful and unprocedural, converted to a normal termination
- 2.Compensation of 12 months' salary (12 x 30,584 = KES 367,008) for unfair and unlawful termination
- 3.One month's salary in lieu of notice (KES 30,584)
- 4.Payment of the Claimant's pension dues
- 5.Respondents to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Osero v Attorney General & 2 others [2019] KEELRC 1272 (KLR)", Case Analysis (2019). ELRC No. 1372 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1272/eng@2019-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.