Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Cause No. 305 of 2015· [2020] KEELRC 1829 (KLR)

Bernard Okello Ooko v Mbagathi View Academy Limited [2020] KEELRC 1829 (KLR)

Employment and Labour Relations Court
20 January 2020
OMOnesmus Makau
969 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer who fails to show up with evidence at the Employment Court loses automatically—the worker's dismissal was ruled unfair, with damages awarded.

What this practically means

#

Executive summary

#
The claimant, employed by the respondent as a security guard from June 2006 until 23 October 2014, was summarily dismissed by a letter handed to him on duty citing disobedience, violence and other misconduct under investigation. He sued seeking declarations that the dismissal was unlawful and unfair, terminal dues and compensatory damages of Kshs. 1,715,599, interest and costs. The respondent defended, asserting the dismissal was for gross misconduct after a hearing and that all dues were paid. At the hearing on 3 June 2019 only the claimant testified, adopting his statement and producing exhibits; the respondent adduced no evidence, though both parties filed submissions. The court framed two issues: whether the dismissal was unfair, and whether the claimant was entitled to the reliefs sought. Applying sections 43 and 45(2) of the Employment Act, the court held that the employer bears the burden of proving valid reasons and fair procedure, and since the respondent tendered no evidence to support its defence, the burden was not discharged and the dismissal was unfair. The claimant was declared entitled to compensatory damages under section 49. The court awarded one month's salary in lieu of notice (Kshs. 12,000), eight months' salary as compensation (Kshs. 72,000) for his eight years of unblemished service, and leave for eight years at 21 days per year (Kshs. 7,753.46), totalling Kshs. 161,538.46 subject to statutory deductions. Claims for overtime, public holidays and gratuity were dismissed for lack of particulars and evidence. Judgment was entered with costs and interest at court rates.

Key legal issues

#
01

Whether the summary dismissal was unfair

Holding

The dismissal was unfair and unlawful because the respondent, who alleged gross misconduct and a hearing, adduced no evidence to discharge its statutory burden.

Reasoning

Section 45(2) of the Employment Act renders termination unfair unless the employer proves valid and fair reasons and a fair procedure. The respondent pleaded gross misconduct and a hearing in its defence, but the claimant denied these averments and the respondent neither appeared nor tendered evidence at the hearing. The pleaded allegations therefore remained unproven, and the employer failed to discharge its burden under sections 43 and 45.

p. 2
02

Whether the claimant was entitled to terminal benefits and compensatory damages

Holding

The claimant was awarded notice pay, 8 months' salary as compensation and leave pay, but his overtime, public holiday and gratuity claims failed for lack of particulars and evidence.

Reasoning

Having found the dismissal unfair, the court granted compensatory damages under section 49 of the Employment Act, considering 8 years of unblemished service without warning letters and absence of proven misconduct. Leave was awarded at 21 days per year for 8 years because the claim was not disproved using leave records. However, the overtime, public holiday and gratuity claims collapsed for want of particulars and evidence.

p. 2

Legal principles established

#
  • An employer bears the burden of proving both valid and fair reasons for termination and that a fair procedure was followed; failure to adduce evidence means the dismissal is unfair.

Court orders

#
  1. 1.Declaration that the claimant's summary dismissal was unlawful and unfair
  2. 2.Award of Kshs. 12,000 being one month's salary in lieu of notice
  3. 3.Award of Kshs. 72,000 being 8 months' salary as compensation for unfair termination
  4. 4.Award of Kshs. 7,753.46 for 8 years' leave at 21 days per year
  5. 5.Total award of Kshs. 161,538.46 subject to statutory deductions
  6. 6.Interest at court rates from the date of judgment and costs of the suit

Authorities

#

Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 49
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (section 45, 43 and 49 of the Employment Act invoked in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Bernard Okello Ooko v Mbagathi View Academy Limited [2020] KEELRC 1829 (KLR)", Case Analysis (2020). ELRC Cause No. 305 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1829/eng@2020-01-20

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