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ELRCDismissedMemorandum of Claim dated 9th May 2012 (Employment and Labour Relations Court, Nairobi)· [2021] KEELRC 106 (KLR)

Mark Ekale Ekuam v Telkom Kenya Limited [2021] KEELRC 106 (KLR)

Employment and Labour Relations Court
14 December 2021
3,649 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, a long-serving shop manager with the Respondent, sued for unfair and unlawful termination of his employment following a September 2011 audit of the Mega Shop that allegedly revealed stock shortages attributed to his negligence in managing the preferred partner credit facility. He sought salary and benefits to retirement, additional awards, severance pay, costs and interest. The Respondent defended the termination as summary dismissal for gross negligence under its Human Resource Policy, asserting the Claimant failed to confirm clearance of partners' cheques and approved purchases from a blacklisted partner. The court found that the disciplinary process was precipitated by an audit report which the Respondent never proved: the Respondent's own witnesses had never seen the full and signed report, none of the auditors testified, and the report was not availed to the court, so the Respondent failed to discharge its burden under Sections 43 and 45 of the Employment Act. However, on remedies, the court applied Rika J's decision in D K Njagi Marete and held that anticipatory salaries to retirement would not be a fair remedy since the Claimant was no longer rendering service and had not mitigated. Severance pay was unavailable because the termination was not a redundancy. Having sought no alternative relief, the Claimant recovered nothing despite the adverse finding on the termination. The suit was dismissed with no order as to costs, delivered at Nairobi on 14th December 2021 by Nzioki wa Makau J.

Key legal issues

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01

Proof of reasons for termination

Holding

The termination lacked basis because the Respondent did not prove the audit report on which it relied; its own witnesses had never seen the full report and none of the audit participants testified

Reasoning

The disciplinary process was precipitated by an audit report, yet neither of the Respondent's witnesses had seen the full and signed report nor participated in its preparation. The report was not availed to the Court and no auditor was called to testify. It was therefore unclear what the Claimant's participation in the matters in the report was, and the Respondent failed to discharge its burden under Sections 43 and 45 of the Employment Act.

p. 2
02

Remedies for unfair termination

Holding

Even though the termination was found to lack basis, the Claimant recovered nothing because the specific reliefs sought (salary to retirement, additional awards, severance pay) were not legally available

Reasoning

The court applied Rika J's reasoning in D K Njagi Marete v Teachers Service Commission that anticipatory salaries for years unworked would not be a fair and reasonable remedy since the employee no longer renders labour and must mitigate. Severance pay under Section 40(1)(g) attaches only to redundancy. The Claimant sought no alternative relief and thus recovered nothing despite the adverse finding on the termination.

p. 3

Legal principles established

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  • The employer bears the burden of proving that there were valid reasons for termination, including production of the audit or investigation reports relied upon; where the full and signed report is not availed and its makers not called, the termination lacks basis
  • Anticipatory salaries to retirement are not an available remedy where the employee has not mitigated or is no longer rendering service
  • Severance pay is payable only on redundancy, not on termination for gross negligence

Court orders

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  1. 1.Suit dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 49
  • Employment Act, 2007Section 50
  • Employment Act, 2007Section 40(1)(g)
  • Employment Act, 2007Section 35(5)
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47

Cases cited (10)

  • Kenfreight (EA) Ltd v Benson K. Nguti
    [2016] eKLR
  • CMC Aviation Limited v Mohammed Noor
    [2015] eKLR
  • Geoffrey Ajuong Okumu & Anor v Engineers Board of Kenya & 4 Others
    [2021] eKLR
  • D K Njagi Marete v Teachers Service Commission
    [2020] eKLR
  • Bamburi Cement Limited v William Kilonzi
    [2016] eKLR
  • Laureen M Nzau v Kenya Revenue Authority
    [2021] eKLR
  • Elizabeth Wakanyi Kibe v Telkom Kenya Ltd
    [2014] eKLR
  • Engineer Francis N. Gachuri v Energy Regulatory Commission
    [2013] eKLR
  • Kennedy Nyamwaya Bundi v Instra Products (EPZ) Limited
    [2021] eKLR
  • D K Njagi Marete v Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim; no specific constitutional provision invoked for jurisdiction)

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, "Mark Ekale Ekuam v Telkom Kenya Limited [2021] KEELRC 106 (KLR)", Case Analysis (2021). Memorandum of Claim dated 9th May 2012 (Employment and Labour Relations Court, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/106/eng@2021-12-14

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