Dominic Otieno Odeny v Kenya Kazi Services Limited [2021] KEELRC 148 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the termination was substantively justified
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)
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.
Whether the termination complied with fair procedure under section 41
Although a hearing process of sorts occurred, the employer failed to prove the components of fairness, so procedural fairness was not established
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.
Entitlement to reliefs
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
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.
Legal principles established
#- 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
#- 1.A declaration that the claimant's termination by the respondent was unfair and unlawful.
- 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.One month's salary in lieu of notice being Kshs 22,044.03.
- 4.The total award is Kshs 198,396.27
- 5.The claimant shall have the costs of the suit.
- 6.Interest on the amount in (d) at court rates from the date of Judgement till payment in full.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- William v Bollore Africa Logistics Limited (Cause 1494 of 2017) [2023] KEELRC 3030 (KLR)[2023] KEELRC 3030 (KLR)16 Nov 2023
- William v Bollore Africa Logistics Limited (Cause 1494 of 2017) [2023] KEELRC 3030 (KLR)[2023] KEELRC 3030 (KLR)16 Nov 2023
Cite this brief
#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.