Ismael Otieno Omollo v Oshwal Education and Relief Board t/a Oshwal Academy Mombasa [2021] KEELRC 818 (KLR)
The bottom line
#A Kenyan court upheld a worker's dismissal for unauthorised absence, ruling that employees who ignore show cause letters lose their fairness protections.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a valid reason for termination under Section 43 of the Employment Act
The Court held there was a valid reason - unauthorised absence from work for more than a month without written permission amounted to gross misconduct
The absence between 4th November and 20th December 2016 was uncontested; the dispute was whether it was authorised. No documentary evidence supported either side. The Court held the employee was obliged to notify the employer and seek extension of absence; instead the employer sought out the employee and issued a show cause letter which went unanswered. The employer acted reasonably in the circumstances, and courts should not substitute their view for the employer's disciplinary decision.
Whether the termination complied with the procedural fairness requirements of Section 41
The Claimant, by failing to respond to the show cause letter, placed himself outside the Section 41 procedural fairness safeguards and could not complain of their breach
The Respondent issued a show cause letter dated 28th November 2016 and made follow-up calls, but the Claimant did not respond within the required time. Citing Jackson Butiya v Eastern Produce Kenya Limited, the Court held that an employee who squanders the employer's grievance mechanism cannot later complain that he was not heard. This settled the issue of procedural fairness against the Claimant.
Whether the Claimant was entitled to leave pay and gratuity
Both claims failed - leave had been exhausted and no basis was laid for gratuity
The evidence showed that at the time of leaving, the Claimant had exhausted all his leave, rendering the leave pay claim misplaced. The gratuity claim failed because no basis was laid for it. These findings, together with the failure to prove unfair termination, resulted in the entire claim being dismissed.
Legal principles established
#- An employee absent from work is under an obligation to notify the employer of the reason for absence and seek permission for extension of absence
- The reasons for termination are the matters the employer genuinely believed to exist at the time of termination (Section 43(2), Employment Act)
- Courts should be wary of usurping the employer's decisional function in workplace disciplinary processes
- An employee who fails to respond to a show cause letter cannot later complain of breach of procedural fairness under Section 41
Court orders
#- 1.The Claimant's entire claim is dismissed
- 2.Each party to meet their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007, Sections 41, 43, 44(4)(a))
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chemengich v Radar Limited (Cause 36 of 2017) [2025] KEELRC 638 (KLR)[2025] KEELRC 638 (KLR)27 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Ismael Otieno Omollo v Oshwal Education and Relief Board t/a Oshwal Academy Mombasa [2021] KEELRC 818 (KLR)", Case Analysis (2021). Cause dated 25th May 2017, filed 6th June 2017 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/818/eng@2021-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.