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ELRCPartially AllowedCause No 2487 of 2016· [2020] KEELRC 845 (KLR)

Lily Yeko Ngeywa v World Vision Kenya [2020] KEELRC 845 (KLR)

Employment and Labour Relations Court
19 June 2020
MOMAUREEN ONYANGO
3,063 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court awarded a World Vision employee 12 months' salary because her dismissal hearing was fake and key evidence was never shared with her.

What this practically means

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Executive summary

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The claimant, employed by World Vision Kenya from 1 October 2001 and last serving as a systems operator at the Osiligi ADP Camp in Kajiado on a salary of Kshs.87,794.50, was summarily terminated on 9 May 2016 following investigations into sponsorship data irregularities. The stated grounds were failure to adhere to quality assurance for sponsorship operations, inconsistencies between the STEP system data and individual files, use of outdated forms and failure to whistle blow on child protection issues. She sued for declarations of unfair dismissal, reinstatement (later abandoned), pension and gratuity, twelve months' salary as compensation, salary arrears for the unexpired contract period, interest and costs. The court framed two issues: the lawfulness of and reasons for the termination, and entitlement to reliefs. On substance, the charges fell within her job description and she had admitted delayed adoption of new forms and struggled with data discrepancies, but the respondent relied on investigation findings that were never availed to her or produced in court, denying her the opportunity to interrogate them; the termination therefore lacked substantive justification. On procedure, although she was heard, an email showed the decision to dismiss had been made before the hearing, and she was not informed of her right to representation; the hearing was a facade. The court awarded the maximum twelve months' compensation of Kshs.1,053,534.00 and terminal dues including accumulated gratuity, but refused reinstatement, pension and salary for the unexpired contract as anticipatory income. The respondent was ordered to pay the claimant's costs, with interest on the decretal sum from the date of judgment.

Key legal issues

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01

Whether the respondent had valid and justifiable reasons for the termination

Holding

The grounds (outdated forms, data inconsistencies) were within the claimant's purview, but the reliance on unavailed investigation findings deprived the termination of substantive justification under section 45.

Reasoning

Section 43(1) and 47(5) place the burden of justifying termination on the employer. The claimant admitted delays in adopting new forms and data discrepancies were noted in her 2015 appraisal. However, the investigation findings that influenced the show cause letter and termination were never availed to her or produced in court, so she could not interrogate the charges. The court found the termination unfair for lack of substantive justification.

p. 4
02

Whether the termination procedure was fair

Holding

Although the claimant was issued a show cause letter and heard, the hearing was a facade because a decision to dismiss had already been made, and she was not informed of her right to representation; the termination was unprocedural and unfair.

Reasoning

The claimant conceded due process steps were taken, but an email from Bernadette to Jeremiah showed dismissal had been decided before the hearing, and the termination letter was issued immediately after the hearing. There was also no evidence the claimant was informed of her right to be represented by a fellow employee. The court therefore found the hearing was not genuine.

p. 4
03

Whether the claimant was entitled to 12 months' compensation

Holding

Yes. Considering 15 years of service with a clean record, the circumstances of termination, untenability of reinstatement and inability to find alternative employment, maximum compensation of 12 months was awarded.

Reasoning

Once unfair termination was established, the court assessed compensation under Section 49(4) of the Employment Act, weighing length of service, clean record, the manner of termination, the futility of reinstatement after more than three years, and the claimant's inability to secure alternative employment, and awarded the maximum of 12 months' gross salary.

p. 5
04

Entitlement to pension, gratuity and salary arrears for the unexpired contract

Holding

Pension refused for want of evidence; gratuity deducted from monthly pay but never paid was payable as a terminal due; salary arrears for the unexpired contract refused as anticipatory income.

Reasoning

Pay slips showed gratuity of Kshs.10,442.00 was deducted monthly from gross pay and the respondent admitted non-payment of dues, so accumulated gratuity was payable as set out in the termination letter. Salary for the unexpired six months of the contract was rejected following authority that the law does not provide for anticipatory income and employees must mitigate losses.

p. 5

Legal principles established

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  • For a termination to pass the fairness test, there must be both substantive justification and procedural fairness.
  • An employer must avail investigation findings to the employee so that the employee can interrogate the charges; failure to do so renders the termination unfair for lack of substantive justification.
  • Where an employer has made up its mind before the disciplinary hearing, there is no genuine hearing and the termination is unprocedural and unfair.
  • Payment of salary for the unexpired period of a contract is not due as the law does not provide for anticipatory income.

Court orders

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  1. 1.Award of Kshs.1,053,534.00 to the claimant as 12 months' compensation for unfair termination under Section 49(1)(c) of the Employment Act
  2. 2.Payment to the claimant of her terminal dues as set out in the letter of termination, including accumulated gratuity
  3. 3.Respondent to pay the claimant's costs of the suit
  4. 4.Interest on the decretal sum at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45
  • Employment ActSection 47(5)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 49(4)
  • Employment Act 2007Section 49(1)(c)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (11)

  • Bamburi Cement Limited v William Kilonzo
    [2016] eKLR
  • Moses Ochieng v Unilever Kenya Limited
    [2018] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Angela Shiukuru Ilondanga v Airtel Networks Kenya Limited
    [2018] eKLR
  • Pamela Nelima Lutta v Mumias Sugar Company Limited
    [2017] eKLR
  • Naftali Ayot Okanja v Ria Plywoods Kenya Limited
    [2017] eKLR
  • Walter Ogal Anuro v Teachers Service Commissions
    [2013] eKLR
  • Robert Kennedy Moi v Attorney General and Another
    [2014] eKLR
  • D.K. Njagi Marete v Teachers Service Commission
    [2013] eKLR
  • Menginya Salim Murgani v Kenya Revenue Authority
    High Court Civil Case No. 1139 of 2002
  • Olgha Auma Adede v New Kenya Cooperative Creameries Ltd
    Industrial Court Cause No 87 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (first-instance employment claim)

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, "Lily Yeko Ngeywa v World Vision Kenya [2020] KEELRC 845 (KLR)", Case Analysis (2020). Cause No 2487 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/845/eng@2020-06-19

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