Tom Otieno Midianga v Wilham Kenya [2021] KEELRC 1355 (KLR)
The bottom line
#A Kenyan court ruled a long-serving employee was fired unfairly without a hearing, awarding him a full year's salary plus unpaid Sunday wages.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was substantively and procedurally fair
The termination was unfair and unlawful; the Claimant was dismissed for no fault of his own and without a hearing
The mechanical failure of the Respondent's poorly serviced vehicle caused the failed delivery, not the Claimant's negligence. The Respondent relied on spent show cause letters, which cannot found a fresh disciplinary action, and did not afford the Claimant a hearing before termination, breaching natural justice and Section 41 of the Employment Act. The employer failed to justify the dismissal under Sections 43 and 45.
Whether the discharge voucher barred the claim
No discharge voucher was produced; the Respondent failed to prove a discharge or waiver, so the claim survives
The court found that no discharge voucher was produced by either party, only the termination letter listing the heads of terminal dues. Since the Respondent failed to prove there was a discharge or waiver, the Claimant remained entitled to recover for the unfair and unlawful termination.
Whether the claim for unpaid Sunday wages was time barred as a continuing injury
Partially: claims for Sundays before June 2012 were time barred; only 53 Sundays within the year preceding termination were recoverable
The court accepted the Respondent's submission that unpaid wages for Sundays worked constituted a continuing injury capped at one year under Section 90 of the Employment Act. The injury ceased at termination on 24th June 2013, so only Sundays from June 2012 to June 2013 (53 days) were recoverable.
What compensation is due for the unfair termination
Maximum compensation of 12 months' gross salary (Kshs. 539,028/-) was awarded given 23 years of service and dismissal without fault
The court held that since the dismissal was on account of no fault on the part of the employee, maximum compensation under Section 49 of the Employment Act was sufficient recompense, taking into account the Claimant's long service of over 23 years.
Legal principles established
#- Once a distinct disciplinary action is taken against an employee, the allegations forming its subject matter cannot be made the subject of future disciplinary action; the offence becomes a spent cartridge
- An employer must afford an employee a hearing before termination; termination without a hearing contrary to natural justice and Section 41 of the Employment Act is unfair
- Where a discharge or waiver is not proved, the employee remains entitled to recover for unfair and unlawful termination
- Claims founded on a continuing injury are capped at one year from the cessation of the injury
Court orders
#- 1.A declaration that the termination of the Claimant's services on 24th June 2013 was unfair and wrongful
- 2.Compensation to the maximum 12 months – Kshs. 539,028/-
- 3.Kshs. 119,035.35 (44,919/30x1.5x53 Sundays) for Sundays worked
- 4.Costs of the suit
- 5.Interest on the compensation and the Sundays award at court rates from date of filing suit till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and the Employment and Labour Relations Court (Procedure) Rules, 2016
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.
- James Shakombo v Simba Telecom Limited [2022] KEELRC 582 (KLR)[2022] KEELRC 582 (KLR)10 Mar 2022
Cite this brief
#Cite this brief
Caselaw, "Tom Otieno Midianga v Wilham Kenya [2021] KEELRC 1355 (KLR)", Case Analysis (2021). ELRC Cause (Nairobi), filed 22nd January 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1355/eng@2021-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.