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ELRCPartially AllowedNot stated in the excerpt· [2020] KEELRC 389 (KLR)

Godfrey Oduor Odhiambo v Ukwala Supermarket Kisumu Limited [2020] KEELRC 389 (KLR)

Employment and Labour Relations Court
15 October 2020
MNMathews N. Nduma
2,125 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that an employer must prove both a valid reason and fair procedure before summarily dismissing an employee, including union representatives.

What this practically means

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Executive summary

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The claimant, employed as a shop assistant in November 2010 and Chairman of the Central Staff Committee at the respondent's Ukwala shop, was summarily dismissed by letter dated 18th November 2015 on allegations of absconding work for seven days. The dismissal came shortly after he had attended, with the respondent's facilitation, meetings in Nairobi concerning the takeover of the shop by Choppies Company. He sued for notice pay, underpayments, leave and house allowance, severance pay, a certificate of service and general damages for unfair termination. The court framed two issues: whether the summary dismissal was for a valid reason following a fair procedure, and whether the claimant was entitled to the reliefs sought. The respondent's witness produced neither the show cause letter nor minutes of the disciplinary hearing and led no evidence to contradict the claimant's explanation that his absences were authorised union meetings or permitted leave. The court found the respondent had not discharged its onus under sections 43(1) and (2), 41, 45 and 47(5) of the Employment Act, and that the claimant had been victimised for his union role during the takeover. It applied Ikahra Hussein Noor and Francis Nyongesa Kweya to award ten months' salary (Kshs. 170,030) as compensation plus one month's notice pay, interest, costs and an order for a certificate of service within 30 days. Claims for underpayment, house allowance and leave allowance were dismissed for want of proof. Judgment was delivered online under COVID-19 directions with the parties' consent.

Key legal issues

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01

Valid reason and fair procedure for summary dismissal

Holding

The respondent failed to prove a valid reason or fair procedure; the dismissal was wrongful, unlawful and unfair

Reasoning

RW1 did not produce the show cause letter nor minutes of the disciplinary hearing, and adduced no evidence contradicting the claimant's explanation for the alleged absences. The claimant, who was shop floor union chairman, explained his absences as authorised union meetings and permitted leave, and discharged his burden under section 47(5). The court found victimisation connected to his role in the Ukwala–Choppies takeover meetings.

p. 3
02

Compensation for unfair termination

Holding

Ten months' salary as compensation under section 49(1)(c) and (4) of the Employment Act, plus one month's notice pay

Reasoning

The claimant served diligently for five years, played a higher representative role, did not contribute to the dismissal, lost his source of income and received no terminal benefits or certificate of service. Reinstatement was no longer possible due to changed circumstances, hence monetary compensation of Kshs. 170,030 (17,003 x 10) plus notice pay.

p. 3
03

Claims for underpayment, house allowance and leave allowance

Holding

Dismissed for want of proof

Reasoning

The claimant did not prove these heads; RW1 testified that house allowance of Kshs. 1,791 was paid as shown in payslips and leave allowance was paid whenever the claimant went on leave. The court found the claims unproven.

p. 3

Legal principles established

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  • The employer bears the onus under section 43(1) and (2) read with sections 41, 45 and 47(5) of the Employment Act to prove a valid reason for summary dismissal
  • Shop stewards require protection from victimisation in discharging their representative duties

Court orders

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  1. 1.Kshs. 17,030 in lieu of one-month notice
  2. 2.Kshs. 170,030 being compensation for unlawful dismissal (equivalent of ten months' salary)
  3. 3.Interest at court rates from date of judgment till payment in full
  4. 4.Costs of the suit to the claimant
  5. 5.Respondent to provide certificate of service to the claimant within 30 days of judgment

Authorities

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Legislation

  • Employment Actsections 41, 43(1) and (2), 45, 47(5), 49(1)(c) and (4)
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (2)

  • Ikahra Hussein Noor and Bishar Hussein Nor vs Kadertina Hajee Essak Ltd
    ELRC (2016) eKLR
  • Francis Nyongesa Kweya vs Eldoret Water and Sanitation Company Ltd
    E&LRC (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45, 47(5), 49) over an unfair termination claim

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, "Godfrey Oduor Odhiambo v Ukwala Supermarket Kisumu Limited [2020] KEELRC 389 (KLR)", Case Analysis (2020). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/389/eng@2020-10-15

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