Vincent Ocheing’ Onyango v Lucky Distributors Limited & another [2020] KEELRC 782 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the dismissal was wrongful and unfair
The claimant proved wrongful and unfair dismissal on a balance of probability, the respondents having not entered appearance or controverted his evidence
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.
Appropriate remedies for unfair termination
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
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/-.
Whether constitutional relief for breach of Articles 41 and 47 was available
Constitutional declarations and damages were declined because the alleged violations were not pleaded with precision as required for constitutional references
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.
Legal principles established
#- 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
#- 1.Declaration that the dismissal of the claimant was unfair and wrongful
- 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.Award subject to statutory deductions but in addition to costs and interest at court rates from the date of judgment
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.