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ELRCPartially AllowedCause No 418 of 2019· [2021] KEELRC 148 (KLR)

Dominic Otieno Odeny v Kenya Kazi Services Limited [2021] KEELRC 148 (KLR)

Employment and Labour Relations Court
17 December 2021
2,020 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 security officer employed by the respondent from 24th December 2005, was summarily dismissed on grounds including failure to patrol a signal, insubordination and absenteeism. The suit, filed on 27th June 2019, proceeded undefended as the respondent neither entered appearance nor filed a response despite service evidenced by an Affidavit of Service; the matter proceeded to formal proof on 19th October 2021, where the claimant testified and adopted his witness statement and documents. 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 following the Court of Appeal's decision in Kenfreight (E.A.) Limited v Benson K. Nguti on burden of proof, the court held that the employer bore the burden of justifying both the reasons for and the process of termination. Having tendered no defence, the respondent failed to discharge that burden; the claimant's evidence, including clinical notes explaining his absence, stood uncontroverted. The termination was declared unfair and unlawful. The court awarded eight months' gross salary (Kshs 176,352.24) as compensatory damages and one month's notice pay (Kshs 22,044.03), totalling Kshs 198,396.27, with interest at court rates from the date of judgment. Service pay was declined because the claimant's NSSF contributions placed him within the section 35(6)(d) exclusions. The claimant was awarded the costs of the suit. Judgment was delivered virtually at Nairobi on 17th December 2021 pursuant to COVID-19 directives.

Key legal issues

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01

Whether the termination was substantively justified

Holding

The termination was not substantively justified because the employer, having not defended the suit, failed to prove valid and fair reasons under sections 43(1) and 45(2)

Reasoning

Section 43(1) requires the employer to prove reasons for termination, failing which it is deemed unfair. Section 45(2) requires proof that reasons are valid and fair. The respondent neither entered appearance nor tendered evidence despite proper service, so the dismissal letter's allegations of insubordination and absenteeism were uncontroverted. The claimant produced clinic notes and a receipt explaining his absence. The employer's statutory burden was therefore not discharged at all.

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02

Whether the termination complied with fair procedure under section 41

Holding

Although a hearing process of sorts occurred, the employer failed to prove the components of fairness, so procedural fairness was not established

Reasoning

Section 41(1) mandates notification of the intended termination and reasons in a language the employee understands, in the presence of another employee or union representative. The show cause and dismissal letters suggested some hearing took place, but proof of the components of fairness must be tendered through documentary or oral evidence. Since the respondent did not participate in the trial, the burden of proof on process remained undischarged.

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03

Entitlement to reliefs

Holding

The claimant was awarded 8 months' gross salary as compensatory damages and one month's notice pay, but service pay was declined due to NSSF contributions

Reasoning

Compensatory damages of eight months' gross salary were informed by the claimant's length of service and the complete lack of justification for dismissal. Notice pay of one month was awarded under section 35(1)(c). Service pay was excluded because the claimant's payslips showed NSSF contributions, placing him within the section 35(6)(d) exclusions.

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Legal principles established

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  • The burden of proving that a termination was fair rests on the employer; the employee need only assert unfair termination
  • Where an employer fails to tender a defence, its statutory burden under sections 43(1) and 45(2) of the Employment Act remains undischarged and the termination is unfair

Court orders

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  1. 1.A declaration that the claimant's termination by the respondent was unfair and unlawful.
  2. 2.The claimant is awarded compensatory damages in the sum of Kshs 176,352.24 which sum is equivalent to 8 months gross salary.
  3. 3.One month's salary in lieu of notice being Kshs 22,044.03.
  4. 4.The total award is Kshs 198,396.27
  5. 5.The claimant shall have the costs of the suit.
  6. 6.Interest on the amount in (d) at court rates from the date of Judgement 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 44
  • Employment ActSection 44-4-a
  • Employment ActSection 30
  • Employment ActSection 35(1)(c)
  • Employment ActSection 35(6)(d)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (4)

  • National Bank of Kenya vs Samuel Nguru Mutonyi
    (2019) eKLR
  • Nelson Umila Saunya vs Ideal Security Limited
    (2021) eKLR
  • Godfrey Anjere vs Unique Suppliers Limited
    (2013) eKLR
  • Kenfreight (E.A.) Limited v Benson K. Nguti
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dominic Otieno Odeny v Kenya Kazi Services Limited [2021] KEELRC 148 (KLR)", Case Analysis (2021). Cause No 418 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/148/eng@2021-12-17

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