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ELRCPartially AllowedCause 1211 of 2015· [2020] KEELRC 782 (KLR)

Vincent Ocheing’ Onyango v Lucky Distributors Limited & another [2020] KEELRC 782 (KLR)

Employment and Labour Relations Court of Kenya
2 July 2020
954 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employee fired without a hearing won Kshs 221,000 after the employer failed to defend itself, proving employers bear the burden of justifying dismissal.

What this practically means

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Executive summary

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The claimant, employed by the 1st respondent in 1997 as a shop attendant (the company later becoming the 2nd respondent with the same directors), sued for wrongful dismissal, constitutional damages for breach of Articles 41 and 47, terminal benefits, refund of unremitted NSSF and NHIF deductions of Kshs. 117,200/-, unpaid October 2015 salary, twelve months' compensation under section 49 of the Employment Act, costs and interest. The respondents did not enter appearance and the suit proceeded by formal proof. The court found that in October 2015 the claimant was accused of theft by a director, assaulted, and verbally dismissed without a hearing. Applying section 45(2) of the Employment Act, and noting the respondents' failure to controvert the claimant's evidence, the court held the claimant had proved on a balance of probability that he was wrongfully and unfairly dismissed. He was awarded one month's salary in lieu of notice (Kshs. 17,000/-) and the maximum twelve months' compensation (Kshs. 204,000/-), totalling Kshs. 221,000/- against the respondents jointly and severally, plus costs and interest at court rates, subject to statutory deductions. Constitutional declarations were declined for lack of precise pleading, and the claims for service pay, unremitted statutory deductions and unpaid salary failed for want of evidence.

Key legal issues

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01

Whether the dismissal was wrongful and unfair

Holding

The claimant proved wrongful and unfair dismissal on a balance of probability, the respondents having not entered appearance or controverted his evidence

Reasoning

Section 45(2) of the Employment Act places the burden on the employer to prove a valid and fair reason and a fair procedure. The respondents did not enter appearance, so the suit proceeded by formal proof and the claimant's uncontroverted evidence stood. The claimant's account of a verbal dismissal without a hearing following an unproven theft allegation thus satisfied the balance of probability standard.

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02

Appropriate remedies for unfair termination

Holding

One month's salary in lieu of notice plus the maximum twelve months' salary compensation under section 49(1) of the Employment Act, totalling Kshs. 221,000.00

Reasoning

Having found unfair termination, the court found the claimant entitled to salary in lieu of notice and compensation under section 49(1). The maximum twelve months' compensation was awarded on account of the claimant's long service of 18 years without any disciplinary issues, notwithstanding the uncontroverted monthly salary of Kshs. 17,000/-.

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03

Whether constitutional relief for breach of Articles 41 and 47 was available

Holding

Constitutional declarations and damages were declined because the alleged violations were not pleaded with precision as required for constitutional references

Reasoning

The court held that constitutional references demand precise pleading of the alleged violations. Since the claimant did not plead the Articles 41 and 47 breaches with the required precision, the constitutional reliefs could not issue, even though the unfairness of the dismissal was established under the Employment Act.

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Legal principles established

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  • Under section 45(2) of the Employment Act, termination is unfair if the employer fails to prove both a valid and fair reason and a fair procedure
  • In an uncontroverted claim proceeding by formal proof, the claimant's pleaded and uncontroverted facts may establish unfair termination on a balance of probability

Court orders

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  1. 1.Declaration that the dismissal of the claimant was unfair and wrongful
  2. 2.Judgment for the claimant against the respondents jointly and severally for Kshs. 221,000.00 comprising Kshs. 17,000.00 in lieu of notice and Kshs. 204,000.00 as compensation under section 49(1) of the Employment Act
  3. 3.Award subject to statutory deductions but in addition to costs and interest at court rates from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(1)
  • Constitution of Kenya, 2010Article 47
  • Employment Act, 2007Section 45 and section 45(2)
  • Employment Act, 2007Section 49 and section 49(1)
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya, 2010 establishing the Employment and Labour Relations Court (as the court hearing an employment cause under the Employment Act, 2007)

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, "Vincent Ocheing’ Onyango v Lucky Distributors Limited & another [2020] KEELRC 782 (KLR)", Case Analysis (2020). Cause 1211 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/782/eng@2020-07-02

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