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ELRCPartially AllowedPetition (Employment and Labour Relations Court, Nairobi) - number not stated in the judgment· [2020] KEELRC 234 (KLR)

Jacob Omondi Guma v East African Portland Cement; Japheth Ombogo (Interested Party) [2020] KEELRC 234 (KLR)

Employment and Labour Relations Court of Kenya
13 November 2020
MOMaureen Onyango
5,144 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court declared an employee's termination void because the employer gave no reason and no hearing, and ordered him reinstated with full benefits.

What this practically means

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Executive summary

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The Petitioner, employed by the Respondent from 2008 and issued successive contracts culminating in a contract dated 24th September 2019 as Production Manager, was served with a termination notice dated 31st October 2019 taking effect 1st November 2019, shortly after his acting appointment as Head of Production Operations was revoked on 30th October 2019. He petitioned the Employment and Labour Relations Court, contending the termination violated Articles 41, 47 and 50 of the Constitution, the Fair Administrative Action Act and Sections 41, 43, 45, 49 and 50 of the Employment Act, and sought nullification of the termination, reinstatement and damages. The Respondent defended the termination under the probation clause of the contract, relying on Section 42(1) of the Employment Act, and asserted poor performance and lack of engineering qualifications. The court framed two issues: fairness of the termination and entitlement to reliefs. It found the Respondent's averments unsupported by any evidence - no board resolutions, suitability tests or performance assessments were produced - and the sequence of letters pointed to malice or witch-hunting. The termination letter, silent on reasons, violated Articles 47(1) and 50 and was declared null and void. On remedies, applying Section 12(3)(vii) of the ELRC Act and Section 49(3) and (4) of the Employment Act, the court reinstated the Petitioner until the contract's expiry on 25th September 2022, holding the Interested Party's purported appointment null and void as made in the face of conservatory orders. Damages were refused, reinstatement being deemed adequate compensation. The Respondent was ordered to bear costs, with interest on payments from the date of judgment.

Key legal issues

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01

Whether the termination of the Petitioner's employment was fair and in accordance with due procedure

Holding

The termination was unfair, unprocedural and unconstitutional. The termination letter gave no reason, the Respondent produced no board resolution, no evidence of poor performance or suitability tests after 24th September 2019, and the Petitioner was condemned unheard.

Reasoning

The court traced the sequence of letters: a redundancy notice, a new contract, an acting appointment, its revocation and termination within days. The Respondent's pleaded reasons (poor performance, lack of an engineering degree) were contradicted by its own documents and unsupported by evidence. The unexplained and inconsistent changes could only point to malice or witch-hunting, and the Petitioner's rights under Articles 47(1) and 50 of the Constitution and section 4 of the Fair Administrative Actions Act were violated.

p. 7
02

Whether the Petitioner was entitled to reinstatement despite the Respondent's claim that his position had been filled

Holding

Reinstatement was granted. The position had not been substantively filled when the conservatory orders of 18th November 2019 issued, and the Interested Party's purported appointment, made in the face of those orders, was null and void.

Reasoning

The court applied the Section 49(4) factors: the statutory three-year window had not lapsed, the relationship had not irretrievably broken down, and there was no proof the Petitioner contributed to his dismissal. The Respondent's account of the Interested Party's appointment was inconsistent (28th October vs 1st November 2019), the Petitioner only vacated on 6th November 2019, and no evidence showed the Interested Party had applied for or passed a suitability test for the position.

p. 8

Legal principles established

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  • An employer terminating a contract must disclose the reason for termination and afford the employee a fair hearing; failure to do so violates Articles 47(1) and 50 of the Constitution and renders the termination null and void.
  • Averments by an employer about an employee's poor performance or lack of qualifications must be supported by evidence; unproven allegations cannot justify a termination.
  • Where an employee's position has not been substantively filled, reinstatement remains practicable and the court may order it under Section 12(3)(vii) of the ELRC Act and Section 49(3) of the Employment Act.

Court orders

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  1. 1.A declaration that the letter dated 31st October 2019 terminating the Petitioner's contract dated 24th September 2019 violated his rights under Article 47(1) of the Constitution, Article 50 of the Constitution and section 4 of the Fair Administrative Actions Act, and is null and void.
  2. 2.Reinstatement of the Petitioner to the position of Production Manager in accordance with the contract dated 24th September 2019 until its expiry on 25th September 2022 without any loss of benefits, unless lawfully terminated as required by law.
  3. 3.The Interested Party's appointment to the Petitioner's position, if at all done, declared null and void as made in the face of conservatory orders.
  4. 4.The Respondent to bear the costs of the suit.
  5. 5.Any payments arising from the decision to attract interest from the date of judgment.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 47, 47(1), 48, 50, 159(2)(d)
  • Fair Administrative Action ActSection 7, Section 4
  • Employment ActSections 41, 42, 42(1), 43, 45, 49, 49(3), 49(4), 50
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (7)

  • Beatrice N. Mosiria v Judicial Service Commission
    [2019] eKLR
  • Wacuka Barbara Wanjiku & 17 Others v Nairobi City County Public Service Board
    [2018] eKLR
  • Public Service Commission v Christine Mwambua
    [2018] eKLR
  • Abraham Gumba v Kenya Medical Supplies Authority
    [2014] eKLR
  • Danish Jalang’o & Another v Amicabre Travel Services Limited
    [2014] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • Nelson Ogeto Mogaka & 15 others v Geothermal Development Company Limited
    [Supra]
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12(3)(vii); Employment Act, Section 49(3); Articles 41, 47 and 50 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jacob Omondi Guma v East African Portland Cement; Japheth Ombogo (Interested Party) [2020] KEELRC 234 (KLR)", Case Analysis (2020). Petition (Employment and Labour Relations Court, Nairobi) - number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/234/eng@2020-11-13

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