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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 190 of 2016· [2019] KEELRC 1841 (KLR)

Kevins Alango Okonya v Egypro East Africa Limited [2019] KEELRC 1841 (KLR)

Employment and Labour Relations Court
10 April 2019
1,865 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employer that cannot prove both a valid reason and fair procedure for dismissal must pay compensation, even if the employee shares some blame.

What this practically means

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Executive summary

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The claimant, employed orally on 22.01.2014 as a maintenance technician at Kshs.25,000.00 per month (later Kshs.35,000.00), was verbally and abruptly dismissed on 22.05.2015. He sued for a declaration of procedural unfairness, leave pay, salary for 22 days, gratuity, housing allowance, maximum 12 months' compensation, interest, indemnity costs and a certificate of service. The respondent alleged summary dismissal for absence from duty for one week without lawful excuse despite a denied sick-leave request. The court found the respondent's evidence, particularly that of supervisor RW3, contradictory and unsupported by work schedules or per diem payment records, and held that the respondent failed to prove a valid reason for termination under section 43 of the Employment Act. The dismissal without notice and hearing breached section 41, rendering the termination procedurally unfair, and the claimant discharged his burden under section 47(5). On remedies, the court granted the declaration, salary for 22 days, five months' compensation (Kshs.175,000.00) reduced by 50% for the claimant's failure to provide medical records, and a certificate of service under section 51. Claims for annual leave, gratuity and housing allowance failed - leave and gratuity having been paid in final dues and housing being covered by consolidated pay. Judgment was entered for Kshs.183,116.67 payable by 01.06.2019 with interest, plus costs of the suit.

Key legal issues

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01

Whether the reason for termination was valid and proved

Holding

The respondent failed to establish that the claimant was absent from work during the alleged week; the reason for termination was not valid under section 43

Reasoning

The claimant testified he remained at his Bondo work station and no complaints arose. The supervisor RW3 gave contradictory evidence - first that one Joseph would confirm attendance, then that he himself stepped in for the claimant. He failed to exhibit the monthly work schedules or proof of per diem payment that would corroborate his account. On the balance of probability, the alleged absence was not established.

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02

Whether the termination was procedurally fair

Holding

The termination was procedurally unfair as the claimant was dismissed without due notice and hearing contrary to section 41 of the Employment Act

Reasoning

There was no dispute that the claimant was dismissed verbally and abruptly on 22.05.2015 without being accorded notice and an opportunity to be heard. Sections 41 and 45 of the Employment Act mandate procedure before termination. The claimant discharged his burden of proving unfair termination under section 47(5) of the Act.

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03

Quantum of compensation under section 49

Holding

Five months' salary (Kshs.175,000.00) awarded, reduced from the maximum 12 months because the claimant's failure to provide medical records contributed 50% to the termination

Reasoning

The court considered the claimant's contribution through failure to provide medical records as directed, his service of slightly over one year, his desire to continue employment, and that alleged poor performance was not established - the relevant email was seen by the claimant for the first time in court. Weighing all factors, 5 months' compensation at Kshs.35,000.00 per month was appropriate.

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Legal principles established

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  • An employer bears the burden of proving the valid reason for termination under section 43 of the Employment Act, 2007
  • Termination without notice and hearing as required by section 41 of the Employment Act is procedurally unfair
  • A claimant who fails to comply with a lawful employer direction that materially contributes to termination may have compensation reduced accordingly

Court orders

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  1. 1.Declaration that the termination of the contract of service on 22.05.2015 by way of a verbal and abrupt dismissal was unfair
  2. 2.Respondent to pay the claimant Kshs.183,116.67 by 01.06.2019, failing interest at Court rates from the date of judgment until full payment
  3. 3.Respondent to deliver to the claimant a certificate of service by 01.05.2019
  4. 4.Respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 49
  • Employment Act, 2007section 51
  • Employment Act, 2007section 35
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)

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, "Kevins Alango Okonya v Egypro East Africa Limited [2019] KEELRC 1841 (KLR)", Case Analysis (2019). Cause No 190 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1841/eng@2019-04-10

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