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ELRCPartially AllowedNot stated in the judgment· [2020] KEELRC 454 (KLR)

Felix Mbolonzi Kioko v Director of Public Prosecutions [2020] KEELRC 454 (KLR)

Employment and Labour Relations Court
24 September 2020
OMONESMUS N MAKAU
1,154 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, a Clerical Officer II employed at the Attorney General's Chambers in April 2008 and later posted to the respondent's office for special ICT duties, was arrested in October 2014 in connection with a missing Hard Disc, released without charge, suspended, and dismissed by letter dated 26 January 2015. He sued claiming that the dismissal lacked a valid reason and was effected without a hearing, and sought declarations of procedural and substantive unfairness, service pay, twelve months' salary as damages and costs. The respondent did not enter appearance despite service, and the suit proceeded by formal proof on 12 February 2020, the claimant testifying as CW1 and filing written submissions. The court framed two issues: whether the dismissal was unfair and whether the claimant was entitled to the reliefs sought. Applying section 45(2) of the Employment Act, Makau J found the respondent had adduced no pleadings or evidence to controvert the claim, so the claimant's unchallenged evidence of dismissal without valid reason or hearing stood unrebutted. Relying on Walter Ogal Anuro, Pamela Nelima Lutta, Beatrice Nyambune Mosiria and Stanslaus Onchari, the court held the dismissal both procedurally and substantively unfair. The claimant was awarded six months' salary as compensation under section 49(1) considering his six years of service, and service pay of 15 days' pay per completed year, totalling Kshs 227,907, subject to statutory deductions, with costs and interest at court rates. Judgment was delivered online pursuant to Covid-19 directives with the parties' consent.

Key legal issues

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01

Whether the dismissal was unfair

Holding

Dismissal was both substantively and procedurally unfair; respondent adduced no evidence to rebut the claim

Reasoning

Section 45(2) of the Employment Act places the burden on the employer to prove a valid and fair reason and procedural fairness. The respondent did not enter appearance or file a defence, so the claimant's testimony at formal proof stood unchallenged. His evidence that he was dismissed without valid reason and without a hearing was therefore unrebutted, rendering the dismissal unfair. The court drew support from Anuro, Lutta, Mosiria and Onchari.

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02

Whether the claimant is entitled to the reliefs sought

Holding

Claimant awarded compensation equivalent to 6 months' salary and service pay of 15 days per year worked, subject to statutory deductions

Reasoning

Having declared the dismissal unfair, the court exercised its discretion under Section 49(1) of the Employment Act. Considering the claimant's six years of service, it awarded six months' salary as compensation rather than the twelve months sought, and service pay at 15 days' pay per completed year, computed to a total award of Kshs 227,907.

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Legal principles established

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  • Termination is unfair under section 45 of the Employment Act unless the employer proves both a valid and fair reason and that a fair procedure was followed; unchallenged evidence in an undefended suit is taken as true

Court orders

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  1. 1.Declaration that the dismissal was unfair and unjustified
  2. 2.Compensation of 6 months' salary (Kshs 169,938) under Section 49(1) of the Employment Act
  3. 3.Service pay of 15 days' pay for every completed year of service equalling 3 months' pay (Kshs 57,969)
  4. 4.Total award of Kshs 227,907 subject to statutory deductions
  5. 5.Costs of the suit to the claimant plus interest at court rates from the date of judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act

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, "Felix Mbolonzi Kioko v Director of Public Prosecutions [2020] KEELRC 454 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/454/eng@2020-09-24

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