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ELRCPartially AllowedCause No 40 of 2017· [2021] KEELRC 120 (KLR)

Stephen Osino v Eastern Unity Investment Limited [2021] KEELRC 120 (KLR)

Employment and Labour Relations Court of Kenya
17 December 2021
SRStella Rutto
1,916 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employee was unfairly fired because the employer couldn't prove why, awarding him over Kshs 196,000 plus costs.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent as a plant electrician from around 2015 at a salary of Kshs 30,000/= (rising to Kshs 32,700/=), sued for wrongful termination on 23rd November 2016, seeking compensatory damages, one month's salary in lieu of notice and unpaid leave. The respondent denied involvement in the claimant's exit but did not appear at the hearing on 6th October 2021 despite being served with a hearing notice; the court proceeded under Rule 22 of its Rules. The claimant testified through his witness statement and documentary bundle, and filed written submissions citing CMC Aviation Ltd v Captain Mohamed Noor and Anthony Mkala Chitavi v Malindi Water and Sewerage Co. The court framed two issues: whether the termination was unfair and unlawful, and whether the claimant was entitled to the reliefs sought. Applying sections 43(1), 45(2) and 41(1) of the Employment Act, and adopting the Court of Appeal's exposition in Janet Nyandiko v Kenya Commercial Bank Limited, the court held that the employer bears the burden of proving both valid reasons (substantive justification) and fair procedure. The claimant was given no termination letter or reasons; the respondent's defence was internally inconsistent, alleging both resignation and abscondment without any supporting evidence, and it adduced no rebuttal evidence. The termination was therefore unfair and unlawful. The court awarded compensatory damages of Kshs 163,500/= and one month's salary in lieu of notice, totalling Kshs 196,200/=, with costs and interest. The leave claim was declined for want of evidence.

Key legal issues

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01

Whether the claimant's termination was unfair and unlawful

Holding

The termination was unfair and unlawful as the respondent failed to prove valid reasons and did not follow fair procedure

Reasoning

The claimant was not issued with a termination letter stating reasons. The respondent's pleadings were internally contradictory, alleging both resignation and abscondment, yet no evidence supported either. No notice of reasons or opportunity to be heard was given. The respondent did not participate in the hearing or tender evidence to rebut the claimant's assertions, thus failing to discharge its burden under sections 43(1) and 45(2) of the Employment Act.

p. 2
02

What remedies flow from the unfair termination

Holding

Compensatory damages equivalent to five months' gross salary and one month's salary in lieu of notice were awarded; the leave claim failed for want of evidence

Reasoning

The compensatory award was informed by the length of the employment relationship and the respondent's total failure to advance reasons or follow fair procedure. Notice pay was awarded as none was given. The leave claim was declined because the claimant produced no evidence such as an unapproved leave application to justify the entitlement.

p. 3

Legal principles established

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  • The burden of proving reasons for termination lies on the employer, and failure to do so renders the termination unfair
  • An employer must justify both the reason for termination (substantive justification) and fair procedure before termination

Court orders

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  1. 1.Compensatory damages in the sum of Kshs 163,500/= which sum is equivalent to 4 months gross salary
  2. 2.One month's salary in lieu of notice being Kshs 32,700/=
  3. 3.Total award of Kshs 196,200/=
  4. 4.Claimant to have the costs of the suit
  5. 5.Interest on the total award at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment Actsection 43(1)
  • Employment Actsection 45(2)
  • Employment Actsection 45(2)(c)
  • Employment Actsection 41(1)
  • Employment Actsection 45
  • Employment and Labour Relations Court RulesRule 22
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (3)

  • CMC Aviation Ltd vs Captain Mohamed Noor
    Civil Appeal No. 199 of 2003
  • Anthony Mkala Chitavi vs Malindi Water and Sewerage Co.
    eKLR (2013)
  • Janet Nyandiko versus Kenya Commercial Bank Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair termination)

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, "Stephen Osino v Eastern Unity Investment Limited [2021] KEELRC 120 (KLR)", Case Analysis (2021). Cause No 40 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/120/eng@2021-12-17

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