Raustus Ayua Odioko v China Wu Yi Company Limited [2021] KEELRC 138 (KLR)
The bottom line
#A Kenyan employer who sacks an injured worker without a proven, valid reason or a hearing must pay damages, notice pay, leave and service pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was substantively fair
The termination lacked a valid and fair reason; the employer failed to prove abscondment and its evidence was internally inconsistent
Section 43 places the burden of proving the reason for termination on the employer, and section 45 requires the reason to be valid and fair. Two competing reasons emerged - injury-related dismissal versus abscondment. The Respondent's witness statement that the Claimant's whereabouts were unknown conflicted with her testimony that the employer used to take him to hospital. No evidence was led showing attempts to recall him to work. Substantive fairness therefore failed.
Whether the termination was procedurally fair
The termination was procedurally unfair as no notice of contemplated dismissal, grounds, or opportunity to be heard was given
Section 41 of the Employment Act sets out the mandatory procedure for termination: notification of the grounds, hearing of representations, and consideration thereof. The Respondent's evidence was silent on the procedure followed. The Claimant was not informed of the intention to summarily dismiss him nor given any chance to make representations. The mandatory procedure having been breached, the termination was procedurally unfair.
What reliefs were available
Notice pay, unpaid leave, service pay and 7 months' compensation under section 49(1)(c) awarded; public holiday and overtime claims declined for want of specificity and evidence
Having found both substantive and procedural unfairness, the court awarded one month's salary in lieu of notice, unpaid leave compensation of Kshs. 32,160 as the custodian of records (employer) did not controvert it, service pay since the Claimant was not a member of NSSF or NHIF, and 7 months' gross salary as compensation under section 49(1)(c), considering the workplace injury genesis and the Respondent's lack of candour.
Legal principles established
#- Under section 43 of the Employment Act the employer bears the burden of proving the reason(s) for termination, failing which the termination is unfair under section 45
- Procedural fairness under section 41 is mandatory; failure to inform the employee of contemplated dismissal and to hear them renders termination unfair
- Where an employee is absent allegedly for abscondment, the employer must show steps taken to reach the employee before dismissal
Court orders
#- 1.One month's salary in lieu of notice, Kshs. 12,880.
- 2.Unpaid leave compensation, Kshs. 32,160.
- 3.Service pay, Kshs. 14,812.
- 4.Compensation under section 49 (1) (c), Kshs. 90,160.
- 5.Costs of the suit.
- 6.Interest at court rates from the date of filing this suit till full payment.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ng’asura & 28 others v Karrymart Limited (Cause 903 of 2017) [2025] KEELRC 2600 (KLR)[2025] KEELRC 2600 (KLR)25 Sept 2025applied
Cite this brief
#Cite this brief
Caselaw, "Raustus Ayua Odioko v China Wu Yi Company Limited [2021] KEELRC 138 (KLR)", Case Analysis (2021). Cause No 449 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/138/eng@2021-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.