Mark Ekale Ekuam v Telkom Kenya Limited [2021] KEELRC 106 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Proof of reasons for termination
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
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.
Remedies for unfair termination
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
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.
Legal principles established
#- 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
#- 1.Suit dismissed
- 2.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.