Dominic Owuor Okumu & another v Fruity Fruits Limited [2021] KEELRC 612 (KLR)
The bottom line
#A Kenyan court threw out unfair dismissal claims mostly because the employees skipped a disciplinary hearing, but the employer won because it skipped one too.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimants was substantively fair
Yes - the Respondent had a valid and fair reason for the summary dismissal
Evidence on record, including CW2's cross-examination admission, established that the Claimants were found with a crate of watermelon not destined for Mombasa while weighing goods destined for Mombasa. Although the Respondent led no evidence on how the crate was to be moved out, the Claimants created the suspicious circumstances and failed to explain the mix-up to the Supervisor. This satisfied Section 43(2) of the Employment Act on the employer's genuine belief.
Whether the termination was procedurally fair
No - the dismissal was procedurally flawed because no disciplinary hearing was conducted
The Claimants testified they were not taken through any disciplinary hearing, and the Respondent's witness confirmed there were no disciplinary procedures for employees. Section 41(2) of the Employment Act requires an employer to hear and consider representations on grounds of misconduct before termination, and Section 45 requires fair procedure. The dismissal therefore failed on procedure despite a valid reason.
Whether the Claimants are entitled to 12 months' salary as compensation
Partially - compensation limited to two months' salary each (Kshs.37,000 per Claimant)
Under Section 49(1)(c) of the Employment Act compensation is discretionary, guided by the factors in Section 49(4). The Court weighed the Claimants' service of about 4 years and 8 months and desire to continue in employment against their creation of the suspicious circumstances leading to termination, and found the equivalent of two months' salary fair.
Legal principles established
#- An employer must have a valid and fair reason for termination and apply a fair procedure; failure to take an employee through a disciplinary hearing renders dismissal procedurally flawed notwithstanding a valid reason.
- Where an employee's conduct creates the suspicious circumstances leading to summary dismissal, and terminal dues were paid, compensation under Section 49(1)(c) may be reduced to a modest equivalent of salary.
Court orders
#- 1.Judgment entered for Dominic Owuor Okumu in the sum of Kshs.37,000 (18,500 x 2)
- 2.Judgment entered for Charles Odhiambo Ochieng in the sum of Kshs.37,000 (18,500 x 2)
- 3.Interest at court rates from the date of judgment till payment in full
- 4.No order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act; statement of claim filed in the ELRC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dominic Owuor Okumu & another v Fruity Fruits Limited [2021] KEELRC 612 (KLR)", Case Analysis (2021). Cause No 1942 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/612/eng@2021-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.