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ELRCPartially AllowedCause No 1116 of 2017· [2021] KEELRC 398 (KLR)

Moses Stanley Okoth v Hyper Market Limited [2021] KEELRC 398 (KLR)

Employment and Labour Relations Court
16 November 2021
JGJacob Gakeri
4,328 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 a warehouse assistant was unfairly dismissed for a 3-hour absence, awarding him 6 months' salary because his employer skipped a fair hearing.

What this practically means

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Executive summary

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The Claimant, a Warehouse Assistant employed on permanent terms from January 2015, was summarily dismissed by letter dated 16th March 2017 on the ground that he disappeared from his work station for about three hours on 10th March 2017. He sued for a declaration of unfair termination, one year's salary, anticipated earnings to retirement, suspension-period dues, and damages for an alleged false accusation of theft. The Respondent admitted the termination but justified it under Section 44(4)(a) of the Employment Act, while conceding at submissions that Section 41 procedural requirements were not followed. The court framed two issues: fairness of the termination and entitlement to remedies. Applying Sections 43, 45 and 41 of the Employment Act, the court found the Respondent had no valid and fair reason, holding that a three-hour absence - unlike the eight- and nine-day absences in the comparative authorities - did not warrant summary dismissal for an employee with a clean record; a warning would have sufficed. Procedurally, no disciplinary hearing was held and no evidence of notification or hearing was adduced, rendering the dismissal substantively and procedurally unfair. The court declared the termination unlawful and awarded compensation equivalent to six months' gross salary (Kshs.88,500) under Section 49, considering the Claimant's conduct, clean record, short service and payments already made. Claims for anticipatory earnings to retirement, suspension dues and damages for false theft accusations were declined for want of evidence and lack of legal foundation. Judgment was entered for the Claimant with costs and interest at court rates from the date of judgment.

Key legal issues

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01

Whether the Respondent had a valid and fair reason for termination

Holding

No. A 3-hour absence without authority did not justify summary dismissal for an employee with a clean record.

Reasoning

Section 45 requires the employer to prove a valid and fair reason. While the Claimant was absent from his work station for about 3 hours, comparable authorities involved absences of 8 and 9 days. The court held the provision on absence does not recognise fractions of days, and given the Claimant's clean record, summary dismissal was too harsh; a warning would have sufficed.

p. 5
02

Whether the termination followed a fair procedure under Section 41

Holding

No. No disciplinary hearing was conducted and no evidence of notification or hearing was adduced.

Reasoning

Section 41 prescribes procedural attributes of lawful termination: explanation of reasons in a language understood, presence of a representative, and consideration of explanations. The Claimant testified he was never subjected to a disciplinary hearing; RW1 did not testify on disciplinary issues. No evidence was led that the Claimant was notified of the allegations or invited to a hearing.

p. 6
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What remedies the Claimant was entitled to

Holding

Declaration of unfair termination plus 6 months' gross salary (Kshs.88,500); anticipatory earnings, suspension dues and defamation-type damages declined.

Reasoning

Under Section 49 the court exercised discretion considering the Claimant's conduct, clean record, length of service (2 years 2.5 months) and payments already made (notice pay, service pay, leave, salary to 16 March 2017, NSSF membership). Claims for retirement earnings, suspension dues and false theft accusations failed for want of evidence and lack of legal basis.

p. 6

Legal principles established

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  • Termination must be both substantively justified and procedurally fair to pass the fairness test
  • Brief absence of a few hours without leave does not, absent prior misconduct, warrant summary dismissal; a warning would suffice
  • No damages are payable for anticipated earnings up to retirement; no employment is permanent

Court orders

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  1. 1.Declaration that the Claimant's termination was substantively and procedurally unfair and thus unlawful
  2. 2.Award of Kshs.88,500 being the equivalent of 6 months' gross salary as compensation for unfair termination
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSection 2
  • Employment ActSection 41
  • Employment ActSection 43(1) and (2)
  • Employment ActSection 44(4)(a) and (c)
  • Employment ActSection 45(2)(a), (b) and (c)
  • Employment ActSection 49(4)(b), (e), (k) and (m)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (14)

  • Standard Group Limited v Jenny Luesby
    [2018] eKLR
  • CMC Aviation Limited v Mohammed Noor
    [2015] eKLR
  • Henry Shikoli Milimu v Hypermart Limited
    [2021] eKLR
  • John Kamunya & another v John Nginyi Muchiri & 3 others
    [2015] eKLR
  • Consolata Kemunto Aming’a v Milimani High School
    [2019] eKLR
  • Loice Otieno v Kenya Commercial Bank
    [2013] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Rodgers Titus Wasike v General East Africa Limited
    [2020] eKLR
  • Thomas Dzombo Kirunga v Krystalline Salt Ltd
    [2020] eKLR
  • Le Monde Luggage CC t/a Pakwells Petje v Dunn and others
    Appeal Case No. JA 65/205
  • Hema Hospital v Wilson Makongo Marwa
    [2015] eKLR
  • D. K. Njagi Marete v Teachers Service Commission
    [2020] eKLR
  • Elizabeth Wakanyi Kibe v Telkom Kenya Ltd
    [2014] eKLR
  • Engineer Francis N. Gachuri v Energy Regulatory Commission
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (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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Later judgments citing this (3)

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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, "Moses Stanley Okoth v Hyper Market Limited [2021] KEELRC 398 (KLR)", Case Analysis (2021). Cause No 1116 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/398/eng@2021-11-16

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