Idris Omar Abdi v Garissa Water and Sewerage Company Limited [2021] KEELRC 1284 (KLR)
The bottom line
#A Kenyan court awarded a dismissed Managing Director Kshs.840,000 because his employer fired him without a fair hearing, but refused to reinstate him.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the Claimant was procedurally fair and substantively justified
The termination was unfair: the Claimant was never invited to a disciplinary hearing, was not given the audit report on which the dismissal was based, and the Respondent failed to prove valid reasons under Section 43 or fair procedure under Section 41 of the Employment Act.
The court applied Sections 41, 43, 45 and 47(5) of the Employment Act. The Respondent's own Human Resource Manager admitted in his witness statement that the summary dismissal was precipitated by the audit report and the Claimant's failure to make timely responses. The Claimant was not accorded a chance to defend himself, was never invited to a disciplinary hearing, and the audit report was never availed to him despite his request. Procedural fairness under Section 41 was therefore not complied with and the grounds were not proved under Section 43, rendering the termination unfair under Section 45(2) and (5).
Whether the Claimant was entitled to reinstatement or preservation of the position of Managing Director
Both prayers failed: preservation was not sought at the interlocutory stage and reinstatement is statutorily time-barred three years after termination.
The court held that preservation of a position can only be ordered where the claimant is likely to be reinstated and must first be sought at the interlocutory stage before the suit is heard. The Claimant did not move the Court to preserve the position and did not show it was vacant. Further, reinstatement may only be ordered within three years from the date of termination; since the contract ended on 4th May 2015, the remedy was no longer available by the date of judgment.
What remedies follow from a finding of unfair termination
One month's salary in lieu of notice (Kshs.120,000) and six months' salary as compensation (Kshs.720,000) awarded; payment for the unexpired term of the contract refused as it is covered by Section 49 compensation.
Having found unfair termination, the court exercised its discretion under Section 49 of the Employment Act. Notice pay was awarded as prayed. Compensation was assessed at six months' salary, taking into account the length of service, the grounds for termination, and the manner of dismissal including the uncontractual payment of one quarter salary during suspension. Salary for the unexpired contract term was refused on the proportionality principle in D. K. Njagi Marete v Teachers Service Commission, that remedies must not facilitate unjust enrichment.
Legal principles established
#- For a termination to pass the fairness test there must be both substantive justification and procedural fairness.
- The burden of proving unfair termination rests on the employee while the burden of justifying the grounds rests on the employer (Section 47(5), Employment Act).
- Employment remedies must be proportionate to economic injuries and must not facilitate unjust enrichment of aggrieved employees.
Court orders
#- 1.Judgment entered in favour of the Claimant against the Respondent in the total sum of Kshs.840,000/= (Kshs.120,000 one month's salary in lieu of notice plus Kshs.720,000 being six months' salary as compensation for unfair termination).
- 2.The Respondent directed to issue to the Claimant a certificate of service in accordance with Section 51 of the Employment Act.
- 3.The Claimant awarded costs of the suit with interest at court rates from the date of judgment till payment in full.
- Jurisdiction invoked
- Original employment and labour relations jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (Article 162(2)(a) jurisdiction implied by the court's mandate; not expressly cited)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ayieko v Kenya Power & Lighting Company Ltd (Cause 1631 of 2017) [2023] KEELRC 1252 (KLR)[2023] KEELRC 1252 (KLR)22 May 2023
- Mbuvi v East African Packaging Industries Ltd (Cause 1087 of 2018) [2023] KEELRC 771 (KLR)[2023] KEELRC 771 (KLR)28 Mar 2023
- Kenya National Private Security Workers Union v Babs Security Limited [2022] KEELRC 507 (KLR)[2022] KEELRC 507 (KLR)11 Mar 2022
- Nugi Kahiga v Access Kenya Group Ltd [2022] KEELRC 488 (KLR)[2022] KEELRC 488 (KLR)11 Mar 2022
- Dennis Asenji v Standard Group Limited [2022] KEELRC 937 (KLR)[2022] KEELRC 937 (KLR)2 Feb 2022
- James Andako v National Industrial Training Authority [2021] KEELRC 525 (KLR)[2021] KEELRC 525 (KLR)11 Nov 2021
Cite this brief
#Cite this brief
Caselaw, "Idris Omar Abdi v Garissa Water and Sewerage Company Limited [2021] KEELRC 1284 (KLR)", Case Analysis (2021). Cause No 874 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1284/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.