Kevins Alango Okonya v Egypro East Africa Limited [2019] KEELRC 1841 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the reason for termination was valid and proved
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
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.
Whether the termination was procedurally fair
The termination was procedurally unfair as the claimant was dismissed without due notice and hearing contrary to section 41 of the Employment Act
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.
Quantum of compensation under section 49
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
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.
Legal principles established
#- 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
#- 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.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.Respondent to deliver to the claimant a certificate of service by 01.05.2019
- 4.Respondent to pay the claimant's costs of the suit
- 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, "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.