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ELRCPartially AllowedStatement of Claim dated 24th February 2017 (Amended Statement of Claim dated 29th May 2018)· [2020] KEELRC 541 (KLR)

Emmanuel Mambo Oduory v One Acre Fund [2020] KEELRC 541 (KLR)

Employment and Labour Relations Court
7 August 2020
MOMaureen Onyango
7,828 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 as Analytical Soil Lab Manager from September 2015, was suspended on 30th November 2016 over sexual assault allegations, issued a show cause letter on 15th December 2016 over harassment and intimidation allegations, attended a disciplinary hearing on 10th January 2017, and was summarily dismissed on 24th January 2017 on grounds including abuse of office, gross negligence, misappropriation of resources and interference with the investigation. He sued for declarations, expungement of records, notice pay, 12 months' compensation and substantial general damages for defamation and misuse of his name. The court framed three issues: fairness of the dismissal, defamation, and entitlement to reliefs. It found the dismissal unfair both substantively and procedurally because the grounds in the dismissal letter were never communicated to the claimant in the suspension or show cause letters, he was not given itemised allegations despite requesting them, and the respondent breached its own HR Policy and Procedures Manual, contrary to Sections 41, 43 and 45 of the Employment Act. However, the defamation claim failed: the suspension letter was internal privileged communication and the allegations were retracted. The court declared the dismissal unfair, awarded one month's salary in lieu of notice (Kshs.152,775) and 7 months' gross salary as compensation (Kshs.1,069,425), totalling Kshs.1,222,200, with costs and interest, plus a certificate of service. The prayer to expunge records and the general damages prayers were declined.

Key legal issues

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01

Procedural and substantive fairness of summary dismissal

Holding

The summary dismissal was unfair both substantively, for want of valid reasons, and procedurally, for want of a proper hearing

Reasoning

The grounds listed in the dismissal letter (abuse of office, gross negligence, misappropriation, interference with investigation) were never put to the claimant in the suspension letter or show cause letter. At the hearing he asked for itemised allegations in writing; the panel instead concluded he was uncooperative and dismissed him. The respondent also failed to follow its own HR manual procedures on discipline and sexual harassment complaints.

p. 10
02

Whether the claim of defamation was proved

Holding

The claimant did not prove defamation; the suspension letter was privileged and was retracted

Reasoning

The claimant had to prove publication of defamatory matter referring to him. There was no evidence that the suspension letter went outside official internal communication, so it was privileged. The respondent also clarified/retracted the allegations at the disciplinary hearing, confirming the sexual harassment charges had been abandoned.

p. 11
03

Entitlement to remedies upon unfair termination

Holding

Claimant entitled to one month's salary in lieu of notice and compensatory damages of 7 months' gross salary

Reasoning

Having found the termination unfair, the court awarded notice pay of Kshs.152,775 and, considering the length of service, the manner of termination and the grounds thereof, awarded the equivalent of 7 months' gross salary (the remaining contract period) as compensation rather than the pleaded 12 months' maximum.

p. 11

Legal principles established

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  • Before terminating employment on grounds of misconduct, the employer must explain to the employee the reason for the contemplated termination and afford a hearing
  • An employer must prove both valid reasons for termination and that a fair procedure was followed
  • Grounds of dismissal must be communicated to the employee before a disciplinary hearing for the dismissal to be fair

Court orders

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  1. 1.A declaration that the summary dismissal of the claimant was unfair both substantively and procedurally
  2. 2.Payment of one month's salary in lieu of notice at Kshs.152,775
  3. 3.Compensation of 7 months' gross salary in the sum of Kshs.1,069,425
  4. 4.Judgment entered in favour of the claimant in the total sum of Kshs.1,222,200
  5. 5.Claimant awarded the costs of the suit with interest at court rates from the date of judgment
  6. 6.Claimant to be issued with a certificate of service in terms of Section 51 of the Employment Act
  7. 7.Prayer for expunging of records from the human resource file declined
  8. 8.Prayers for general damages for defamation and misuse of name dismissed

Authorities

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Legislation

  • Employment ActSections 41, 42(1), 43, 44(3), 44(4)(d) and (e), 45, 51, 74, 75, 6(2), 5(7)(c)
  • Defamation ActSection 3
  • Evidence Actnot specified
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (6)

  • Margaret Wachira v Wachira Waruru & Another
    [2001] eKLR
  • Ezekiel Nyangoya Okemwa v Kenya Marine & Fisheries Institute
    [2016] eKLR
  • Daniel Kioko Mwangangi v Gray's Oak Hotel
    [2020] eKLR
  • Wycliffe A Swanya v Toyota East Africa Ltd & Anor
    Nairobi Court of Appeal No. 70 of 2008
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 44, 45, 51, 74, 75 referenced)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Emmanuel Mambo Oduory v One Acre Fund [2020] KEELRC 541 (KLR)", Case Analysis (2020). Statement of Claim dated 24th February 2017 (Amended Statement of Claim dated 29th May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/541/eng@2020-08-07

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