Edward Abraham Otopi v Creative Consolidated Systems Limited [2020] KEELRC 740 (KLR)
The bottom line
#An employer who fires a worker without a written reason and a hearing will lose in Kenya's Employment Court, even if the worker only served six months.
What this practically means
#Executive summary
#Key legal issues
#Procedural and substantive fairness of termination
The termination was unfair because the respondent neither issued a show cause letter nor gave a hearing, and did not prove valid grounds for termination
The claim was undefended as no defence was filed and no witness called. The claimant's uncontroverted evidence was that he was never issued with a show cause letter, never given a hearing, and never received a termination letter. In submissions the respondent alleged drunkenness and reckless driving, but submissions are not evidence. The court therefore found non-compliance with both the procedural requirements of Section 41 and the substantive fairness requirement of Section 43 of the Employment Act.
Remedies for unfair termination
The claimant was entitled to one month's pay in lieu of notice and compensation, assessed at 2 months' salary given his short service of 6 months
Section 49(1)(a) entitles the claimant to notice pay of Kshs.40,000. For compensation, the court exercised discretion under Section 49, taking into account the claimant's short tenure of only 6 months and the manner of termination, awarding 2 months' salary (Kshs.80,000) instead of the 12 months claimed. A certificate of service was also ordered under Section 51.
Legal principles established
#- In an undefended claim, uncontroverted averments of the claimant are taken as the factual position
- Factual assertions made only in submissions have no evidentiary value
Court orders
#- 1.Declaration that the termination of the claimant's employment was unfair
- 2.Payment of one month's salary in lieu of notice of Kshs.40,000 under Section 49(1)(a) of the Employment Act
- 3.Payment of 2 months' salary as compensation for unfair dismissal in the sum of Kshs.80,000
- 4.Total award of Kshs.120,000
- 5.The respondent to issue the claimant a certificate of service in compliance with Section 51 of the Employment Act
- 6.The respondent to pay the claimant's costs of the claim
- 7.The decretal sum to accrue interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Abraham Otopi v Creative Consolidated Systems Limited [2020] KEELRC 740 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/740/eng@2020-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.