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ELRCPartially AllowedMemorandum of Claim dated 24th July 2019, filed 6th August 2019· [2021] KEELRC 1248 (KLR)

Fredrick Mochengo Ongeri v Gateway Marine Services Limited [2021] KEELRC 1248 (KLR)

Employment and Labour Relations Court
15 July 2021
LNLinnet Ndolo
2,783 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court ruled an employee's dismissal unfair because his accusers never faced him at the disciplinary hearing, awarding him over Kshs. 836,000.

What this practically means

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Executive summary

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The Claimant, employed from 2010 (per his pleading) or April 2014 (per the Respondent) and dismissed on 26th April 2019 while Head of Exports, sued for unlawful termination and terminal dues. The Respondent contended he was lawfully terminated for gross misconduct - re-routing company vehicles in the DRC and doing business with its clients in breach of conflict-of-interest policy - and counterclaimed Kshs. 850,400 for lost revenue and an unauthorised credit facility. The Court framed three issues: lawfulness and fairness of the termination, entitlement to remedies, and the counterclaim. On the evidence, the two key witnesses against the Claimant (Luvusia and Kiamba) were not called at the disciplinary hearing, denying the Claimant an opportunity to face his accusers as required by Section 41 of the Employment Act; no payment to the Claimant for third-party work was proved; and the appeal was not genuinely considered. Applying Walter Ogalo Anuro v Teachers Service Commission, the Court held that both substantive justification and procedural fairness were absent, rendering the termination unlawful. Eight months' salary (Kshs. 743,944) was awarded in compensation, plus salary for March 2018 (Kshs. 92,993), with interest at court rates from judgment. Claims for notice pay, leave days and May 2019 salary were disallowed as paid or unproven, and the house allowance claim failed because the salary was consolidated. The counterclaim was dismissed as unproved. The Claimant received the costs of the case. Judgment delivered at Mombasa on 15th July 2021 by Linnet Ndolo, Judge, via Microsoft Teams owing to COVID-19 restrictions.

Key legal issues

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01

Whether the termination was lawful and fair

Holding

The termination was both substantively and procedurally unfair; the witnesses against the Claimant were not called at the disciplinary hearing, denying him a chance to face his accusers, and no valid reason was proved.

Reasoning

Section 43 requires the employer to prove a valid reason, and Section 41 mandates procedural fairness including hearing and considering representations. The key accusers, Luvusia and Kiamba, were not availed at the disciplinary proceedings, leaving the allegations unverified. The appeal was not given real consideration, and new charges emerged only in the counterclaim, suggesting a fishing expedition.

p. 4
02

Whether the Claimant was entitled to remedies

Holding

The Claimant was awarded 8 months' salary in compensation and salary for March 2018; notice, leave, May 2019 salary and house allowance claims failed.

Reasoning

Compensation was assessed at 8 months taking into account length of service and the Respondent's unlawful conduct. Notice and leave pay were shown to have been paid; the May 2019 salary claim lacked evidential support; the house allowance claim was defeated by the consolidated salary clause in the confirmation letter.

p. 5
03

Whether the Respondent's counterclaim of Kshs. 850,400 was proved

Holding

The counterclaim failed; it rested on allegations of gross misconduct the Court found unproved, and no basis for the claimed figures was demonstrated.

Reasoning

The counterclaim was predicated on the same gross misconduct allegations that failed for want of proof and procedural fairness. Further, the Respondent led no evidence showing how the claimed amounts for lost revenue and the unauthorised credit facility were computed.

p. 5

Legal principles established

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  • For a termination of employment to be lawful and fair, there must be both substantive justification and procedural fairness.
  • Allegations leading to termination must be fully interrogated before termination, including affording the employee an opportunity to face accusers under Section 41 of the Employment Act.

Court orders

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  1. 1.Judgment entered in favour of the Claimant: 8 months' salary in compensation of Kshs. 743,944
  2. 2.Salary for March 2018 of Kshs. 92,993 awarded, totalling Kshs. 836,937
  3. 3.The decretal amount to attract interest at court rates from the date of judgment until payment in full
  4. 4.The Claimant awarded the costs of the case
  5. 5.The Respondent's counterclaim dismissed

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44
  • Employment ActSection 42(1)

Cases cited (1)

  • Walter Ogalo Anuro v Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 44 applied)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Fredrick Mochengo Ongeri v Gateway Marine Services Limited [2021] KEELRC 1248 (KLR)", Case Analysis (2021). Memorandum of Claim dated 24th July 2019, filed 6th August 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1248/eng@2021-07-15

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