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ELRCPartially AllowedCause No 2110 of 2014· [2019] KEELRC 2376 (KLR)

Antone Okoth Awendo v Bridge International Academies Limited (Cause 2110 of 2014) (Employment and Labour) [2019] KEELRC 2376 (KLR)

Employment and Labour Relations Court (Industrial Court)
4 February 2019
MOMAUREEN ONYANGO
1,659 words in judgment
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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 by the Respondent on 29th December 2011 as a logistics officer earning Kshs.162,360 gross, sued for malicious and illegal termination of his employment on 28th January 2014. He claimed that his performance was secretly appraised by a supervisor who was on leave, that he was presented with the appraisal at a meeting without adequate notice or opportunity to defend himself against an absent appraiser, and that the termination was therefore unprocedural. The Respondent, despite filing a Statement of Response denying the claim and asserting the Claimant absconded duty, did not appear at trial despite service and filed no submissions; the court proceeded with the Claimant's case uncontradicted. The court framed two issues: whether the employment was unlawfully and unfairly terminated, and whether the Claimant was entitled to the reliefs sought. It found the termination letter cited poor performance, but the appraisal process was conducted without the Claimant's involvement, the employment contract made no provision for performance appraisal, and the timing (termination letter dated the day before his scheduled leave) showed the termination was predetermined. No evidence controverted these assertions, satisfying section 47(5) of the Employment Act, so the termination was declared unfair. On remedies, the notice pay claim failed because the termination letter offered payment in lieu of notice and the Claimant did not plead non-payment; the service pay claim failed under section 35(6) as he was an NSSF member; and compensation of five months' salary (Kshs.811,800) was awarded under section 49(4). The Respondent was ordered to pay costs, with interest on the decretal sum at court rates from the date of judgment.

Key legal issues

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01

Whether termination was procedurally fair under section 41(1) of the Employment Act

Holding

Termination was unfair; the appraisal was done without the Claimant's involvement and he was not given sufficient notice to prepare his defence

Reasoning

The termination letter cited poor performance, but the Claimant's uncontroverted evidence was that the appraisal was conducted secretly by a supervisor who was absent from the meeting where he was asked to respond. His employment contract made no provision for performance appraisal. Scheduled leave the day after the termination letter suggested the termination was predetermined. No evidence was adduced by the absent Respondent to controvert these assertions.

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02

Whether the reliefs sought were proved

Holding

Only compensation under section 49 awarded; notice pay and service pay claims failed

Reasoning

The termination letter offered payment in lieu of notice and accrued leave, and the Claimant did not plead that these payments were not made. The service pay claim failed because the Claimant was an NSSF member, excluded by section 35(6) of the Employment Act. Compensation of five months' salary was awarded under section 49(4) considering length of service and manner of termination.

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Legal principles established

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  • An employer must accord an employee a hearing and explain reasons for termination under section 41(1) of the Employment Act; failure renders termination unfair
  • An employee who proves uncontradicted allegations of unfair termination meets the threshold under section 47(5) of the Employment Act
  • Compensation for unfair termination is assessed under section 49(4) of the Employment Act taking into account length of service and manner of termination

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was unfair
  2. 2.Award of compensation of five months' salary, Kshs.811,800
  3. 3.Claim for one month's pay in lieu of notice dismissed
  4. 4.Claim for service pay dismissed
  5. 5.Respondent to pay Claimant's costs of the suit
  6. 6.Decretal sum to attract interest at court rates from date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Employment Act, 2007Section 41(1)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49(4)
  • Employment Act, 2007Section 35(6)
  • Industrial Court (Procedure) Rules, 2010Paragraph 14
  • Civil Procedure RulesNot specified

Cases cited (5)

  • Mary Chemweno Kiptui vs. Kenya Pipeline Company Limited
    [2014] eKLR
  • Margaret Auma Ingwe vs. Kenya Power and Lighting Company Limited
    [2015] eKLR
  • Daniel Kiplagat Kipkeibut vs. Smep Deposit Taking Micro Finance Limited
    [2016] eKLR
  • Elijah Kipkoros Tonui vs. Ngara Opticians T/A Bright Eyes Limited
    [2014] eKLR
  • Stephen Mbugua Chege vs. Nairobi City Water & Sewerage Company
    [2017] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (implied); claim founded on the Employment Act, 2007

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, "Antone Okoth Awendo v Bridge International Academies Limited (Cause 2110 of 2014)  (Employment and Labour) [2019] KEELRC 2376 (KLR)", Case Analysis (2019). Cause No 2110 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2376/eng@2019-02-04

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