Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment provided· [2020] KEELRC 378 (KLR)

Diana Adhiambo Odhiambo v Jubilee Insurance Company of Kenya Limited [2020] KEELRC 378 (KLR)

Employment and Labour Relations Court
15 October 2020
1,928 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court upheld an insurer's summary dismissal of an employee who hid a family conflict of interest and received money from a business partner.

What this practically means

#

Executive summary

#
The claimant, employed by the respondent insurance company from 14th November 2012 and earning Kshs. 130,000 monthly, sued for notice pay, maximum compensation for unlawful dismissal, general damages and a certificate of service following her summary dismissal. The dismissal arose from a medical cover tender with Homa Bay County Assembly in which the claimant authorized Ocean Breeze Insurance Agency as intermediary. It emerged that the agency's owner, Fred, was her daughter's boyfriend (her son-in-law), that she did not disclose this relationship, and that she and her daughter received monies from the agency after payment of commission. The agency defaulted in remitting premiums, forcing suspension of the cover for 2014/2015. The claimant testified as CW1; RW1 Sammy Kigo testified for the respondent. The court framed three issues: valid reason, fair procedure, and entitlement to reliefs. It found the claimant's conduct constituted serious misconduct - unauthorized nomination of an intermediary owned by an in-law without disclosure, untruthfulness, and receipt of monies - which contributed to loss of premiums and revenue. The disciplinary process, starting with a show-cause notice and culminating in a hearing she attended and defended, was fair; denial of legal representation in an internal process did not vitiate it. The respondent satisfied sections 41, 43, 44, 45 and 47 of the Employment Act, 2007, and the claimant failed to discharge her burden under section 47(5). The suit was dismissed with no order as to costs, the court directing only that a certificate of service be issued within 30 days, in recognition of the claimant's service since 2012.

Key legal issues

#
01

Valid reason for summary dismissal

Holding

The respondent had a valid reason: the claimant, an insurance company officer, authorized an agency owned by her son-in-law as intermediary without disclosure and received monies from it, causing loss of premiums and revenue

Reasoning

The court found as fact that the claimant authorized Ocean Breeze Agency as intermediary in the Homa Bay County Assembly medical cover while its owner was her son-in-law, concealed that relationship, was untruthful under cross-examination, and received monies from the agency. The conduct contributed to the agency's default in remitting premiums, causing the respondent to suspend the cover. This amounted to serious misconduct satisfying sections 41, 43, 44, 45 and 47 of the Employment Act.

p. 3
02

Fairness of the disciplinary procedure

Holding

The procedure was fair: show-cause notice issued, response received, disciplinary hearing attended and defended; absence of legal representation did not vitiate the process

Reasoning

The disciplinary process commenced with a notice to show cause, the claimant responded, and she attended and defended herself at a hearing. Although her advocate was not allowed to participate, the court held that legal representation is not a mandatory requirement of an internal disciplinary process, and its denial did not render the process unfair. The employer thus complied with section 41 of the Employment Act, 2007.

p. 3
03

Entitlement to reliefs

Holding

Compensation and general damages refused; only a certificate of service awarded, being a statutory entitlement

Reasoning

Having found the dismissal lawful and procedurally fair, the claims for notice pay, compensation and general damages lacked merit and were dismissed. However, the respondent remained statutorily obliged to issue a certificate of service within 30 days. In recognition of the claimant's long service since 2012, the court ordered each party to bear its own costs.

p. 3

Legal principles established

#
  • Failure to allow legal representation in an internal disciplinary process does not by itself negate the fairness of the process
  • An employee who claims wrongful and unfair summary dismissal bears the burden of proving it under section 47(5) of the Employment Act, 2007
  • An employee's non-disclosure of a conflict of interest in an insurance transaction, and receipt of monies from an intermediary, constitutes serious misconduct justifying summary dismissal

Court orders

#
  1. 1.The suit is dismissed with no order as to costs
  2. 2.The respondent to provide a certificate of service to the claimant within 30 days of the judgment
  3. 3.Each party to bear the costs of the suit

Authorities

#

Legislation

  • Employment Actsections 41, 43, 44, 45, 47(5)
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (1)

  • Consolata Kemunto Aminga vs Milimani High School
    Nakuru ELRC No. 474 of 2017
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour disputes (Employment Act, 2007; the judgment does not cite a specific constitutional provision founding jurisdiction)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Diana Adhiambo Odhiambo v Jubilee Insurance Company of Kenya Limited [2020] KEELRC 378 (KLR)", Case Analysis (2020). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/378/eng@2020-10-15

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