Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 444 of 2015· [2021] KEELRC 297 (KLR)

Joseph Oluoch Omung’weso v Olympic Maisonettes Resident’s Association [2021] KEELRC 297 (KLR)

Employment and Labour Relations Court
3 December 2021
OKOcharo Kebira
2,254 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled a night guard's firing without a hearing or valid reason was unfair, awarding him pay, compensation, service pay, and costs.

What this practically means

#

Executive summary

#
The Claimant, employed orally as a Night Guard from December 2010 to 1st February 2015 at a monthly salary rising from Kshs. 5,000 to Kshs. 7,000, sued the Respondent Association claiming unpaid public holidays, payment in lieu of notice, compensatory damages for unlawful termination, gratuity and untaken leave totalling Kshs. 142,100, plus costs and interest. He had complained by letter of 14th January 2014 that his salary was below the statutory minimum wage and that he received no leave, off days, house allowance, or NSSF/NHIF remittances. After a advocate's demand letter of 6th February 2015, the Respondent terminated his employment without notice or hearing. The Respondent did not enter appearance or file a response, so the claim proceeded undefended by formal proof. The court framed four issues: procedural fairness, substantive fairness, available reliefs, and costs. Applying sections 41, 43 and 45 of the Employment Act, it held that no disciplinary process or hearing preceded the termination, so procedural fairness was absent; and that the unopposed Claimant's evidence that he was terminated for agitating for his entitlements meant the employer failed to prove a valid and fair reason, rendering the termination substantively unfair. Reliefs were granted: a declaration of unfair termination, compensation of 8 months' gross salary (Kshs. 63,000) under section 49(1)(c), public holiday pay of Kshs. 5,600, unpaid leave compensation of Kshs. 35,000, and service pay of Kshs. 17,500.50, with interest at court rates from filing and costs of the suit. Judgment was delivered virtually on 3rd December 2021 by Ocharo Kebira J.

Key legal issues

#
01

Procedural fairness of termination

Holding

The termination was procedurally unfair as the Claimant was not informed of the intended action, not accorded a hearing or opportunity to make representations, and no representations were considered

Reasoning

Section 41 of the Employment Act requires the employer to inform the employee of the contemplated termination and grounds, accord him and a colleague of his choice an opportunity to make representations, and consider those representations before deciding. The Claimant's unchallenged evidence was that no disciplinary process was undertaken. Procedural fairness was therefore absent and the termination was unfair under section 45.

p. 3
02

Substantive fairness of termination

Holding

The termination was substantively unfair; the employer, having filed no defence or evidence, failed to prove a valid and fair reason, and the reason was the Claimant's agitation for his entitlements

Reasoning

Sections 43 and 45 place the burden on the employer to prove the reason for termination and that it was valid and fair. With no appearance or response filed, the burden was not discharged and the default consequence under section 45 sets in. The uncontroverted evidence was that the termination followed the Claimant's demand for lawful entitlements, which cannot accord with justice and equity.

p. 3
03

Reliefs available for unfair termination

Holding

Claimant awarded compensation under section 49(1)(c) of 8 months' gross salary (Kshs. 63,000), public holiday pay (Kshs. 5,600), unpaid leave compensation (Kshs. 35,000) and service pay (Kshs. 17,500.50), with interest and costs

Reasoning

Compensation under section 49(1)(c) is discretionary; considering the manner of and reason for termination, 8 months' gross salary was awarded rather than the 12 sought. Unchallenged evidence of unpaid public holidays and leave was credited by parity with the G4S authority. Absent proof of membership of a scheme under section 35(6), service pay of 15 days per year worked was awarded.

p. 3
04

Costs

Holding

Costs of the suit awarded to the Claimant

Reasoning

The suit proceeded undefended after the Respondent failed to enter appearance or file a response; the Claimant succeeded on the claim, and costs followed the event.

p. 4

Legal principles established

#
  • An employer must inform the employee of the intended termination, accord him an opportunity to make representations with a colleague of his choice, and consider those representations before terminating - failing which the termination is procedurally unfair
  • Where an employer files no opposition and adduces no evidence, it cannot discharge the burden under sections 43 and 45 of proving a valid and fair reason for termination, and the termination is deemed unfair
  • Terminating an employee for agitating for legally recognized entitlements is substantively unfair
  • Service pay is payable where the employer does not prove the employee was a member of a scheme exempting it under section 35(6) of the Employment Act

Court orders

#
  1. 1.A declaration that the termination of the Claimant's employment was both procedurally and substantively unfair
  2. 2.Compensation pursuant to section 49(1)(c) of the Employment Act of 8 months' gross salary, Kshs. 63,000
  3. 3.Compensation for holidays worked but not paid, Kshs. 5,600
  4. 4.Compensation for unpaid leave, Kshs. 35,000
  5. 5.Service pay, Kshs. 17,500.50
  6. 6.Interest at court rates with effect from the date of filing suit till full payment
  7. 7.Costs of the suit to the Claimant

Authorities

#

Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 45(4)
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 35(6)

Cases cited (5)

  • Walter Ogal Anuro vs Teachers Service Commission
    (2013) eKLR
  • Swaleh David vs Premier Cookies Limited
    [2021] eKLR
  • Lukas Samarwa Kondo vs Njuca Consolidated Company Limited
    (2020) eKLR
  • Jackson Amondi Anyango & Another vs G4S Security Services Limited
    (2017) eKLR
  • George Mborogo Obangi vs Board of Management Omoyo Secondary School
    [2019] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act, 2007; claim under sections 41, 43, 45 and 49 of the Employment Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Joseph Oluoch Omung’weso v Olympic Maisonettes Resident’s Association [2021] KEELRC 297 (KLR)", Case Analysis (2021). Cause No 444 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/297/eng@2021-12-03

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