Wilfred Otako Sewe v Clayworks Limited [2019] KEELRC 2232 (KLR)
The bottom line
#A Kenyan employer who fired a sick employee without a hearing lost — proper procedure and attendance records are essential before any dismissal.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in termination
The termination was procedurally unfair as there was no disciplinary hearing, no show-cause letter, and no hearing as required under Section 41 of the Employment Act
The court found no record of any disciplinary hearing on any allegation, whether absenteeism or alcoholism. No letter to show cause was issued. The requirements of Section 41 of the Employment Act 2007 are mandatory. Termination therefore failed the minimum standards of fairness under Sections 41, 43 and 45, and was unfair both procedurally and substantively.
Substantive justification for termination (absenteeism)
The Respondent failed to prove that the Claimant was absent for 60 days without leave or lawful cause; no attendance register was produced
The memos referred to a Daily Attendance Register which was never availed to the Court. The letter of termination itself acknowledged the Claimant was on sick leave at the time of termination. Prior warnings and salary deductions for days absent were, if the allegations were true, sufficient punishment already, undermining summary dismissal.
Relief: compensation for unfair termination and refund of deducted salary
The Claimant was awarded 6½ months' salary (Kshs. 110,500) for unfair termination and Kshs. 34,000 refund of irregularly deducted salary
The Claimant was already paid Kshs. 295,790 in gratuity, leave and notice pay, and was in management, not subject to the CBA. Deduction of 52 days' salary had no evidential foundation. The equitable and statutory remedy was 6½ months' salary compensation plus the refund of the irregular deduction.
Legal principles established
#- An employee on sick-off leave cannot be absent without leave or lawful cause so as to justify summary dismissal under Section 44(4) of the Employment Act
- Termination without a show-cause letter or disciplinary hearing breaches the mandatory procedural requirements of Section 41 of the Employment Act
- An employer alleging employee absenteeism must avail the Daily Attendance Register as evidence of the absence
Court orders
#- 1.Declaration that termination was unfair
- 2.Respondent to pay the Claimant the equivalent of 6½ months' salary in compensation for unfair termination at Kshs. 110,500 and Kshs. 34,000 in salary refund, total Kshs. 144,500
- 3.No order on the costs
- 4.Interest at 14% per annum from the date of Judgment till payment is made in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 44 and 45)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilfred Otako Sewe v Clayworks Limited [2019] KEELRC 2232 (KLR)", Case Analysis (2019). Cause 430 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2232/eng@2019-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.