Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2021] KEELRC 1556 (KLR)

Jack Omega Oliech v Kibos Sugar & Allied Industries Ltd [2021] KEELRC 1556 (KLR)

Employment and Labour Relations Court
16 June 2021
RSRadido Stephen
998 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court upheld a worker's dismissal for absenteeism but ordered the employer to pay Kshs 33,971 in untaken leave the employee had accrued.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent as a Pump Attendant Boiling House from 13 January 2011, sued after his employment was terminated on 9 December 2016, alleging unfair termination and breach of contract. On procedural fairness, the Court found that the Respondent issued a show-cause notice setting out the allegations of absenteeism and leaving work without permission, received the Claimant's written response, suspended him for further investigations, and invited him and his Union to a disciplinary hearing. The Union's objections - that the invitation did not outline the allegations and that the union representative would not be on duty - were rejected; the section 55 of the Labour Relations Act invoked by the Union was inapplicable, and section 56 required a recognition agreement which was not demonstrated. The Court held the Respondent was in substantial compliance with procedural fairness requirements. On substantive fairness, sections 43 and 45 of the Employment Act, 2007 placed the burden on the employer, but the Claimant's medical card did not evidence any doctor's appointment on the relevant dates, and attendance before a doctor was peculiarly within his knowledge. The termination was declared fair. On breach of contract, the termination letter had offered to pay accrued leave without stating the amount; invoking sections 10(3) and (7) of the Employment Act, the Court awarded the claimed Kshs 33,971/- for accrued leave for 2015 and 2016. The Cause therefore partially succeeded: declaration of fair termination, award of accrued leave, and each party to bear its own costs.

Key legal issues

#
01

Procedural fairness of the termination

Holding

The Respondent substantially complied with statutory requirements of procedural fairness; the Claimant and the Union snubbed a properly convened disciplinary hearing

Reasoning

The show-cause notice set out the allegations, the Claimant responded in writing, and he was invited to a disciplinary hearing. The Court rejected the objection that the invitation did not state the allegations, since the Claimant knew the subject was absenteeism. The Union's reliance on section 55 of the Labour Relations Act was misplaced, that provision concerning election of union officials, and section 56 required a recognition agreement which was not demonstrated.

p. 2
02

Substantive fairness of the termination

Holding

The termination was substantively fair; the Claimant failed to prove he attended a doctor on 14 November 2016 as alleged

Reasoning

The employer alleged absenteeism on 14 November 2016 and leaving work without permission on 15 November 2016. No attendance records were produced for 15 November, but the Claimant's medical card did not confirm any appointment on either 12 or 14 November. Attendance before a doctor was peculiarly within the Claimant's knowledge, and absent supporting records the Court could not fault the employer's decision.

p. 2
03

Breach of contract - accrued leave

Holding

The Claimant proved breach of contract on the accrued leave head and was awarded Kshs 33,971/-

Reasoning

The termination letter offered to pay accrued leave but did not indicate the amount. Having regard to that offer and sections 10(3) and (7) of the Employment Act, 2007, the Court allowed the claimed sum for accrued leave for 2015 and 2016.

p. 2

Legal principles established

#
  • Under sections 43 and 45 of the Employment Act, 2007, the employer bears the burden of proving that the reasons for termination were fair and valid
  • Where an employer offers to pay accrued leave in the termination letter but does not state the amount, the Court may allow the employee's claimed accrued leave having regard to section 10(3) & (7) of the Employment Act

Court orders

#
  1. 1.Declaration that the termination of the Claimant's employment was fair
  2. 2.Award of Kshs 33,971/- to the Claimant on account of accrued leave for 2015 and 2016
  3. 3.Each party to bear its own costs

Authorities

#

Legislation

  • Employment Actsections 43 and 45
  • Employment Actsections 10(3) & (7)
  • Labour Relations Actsection 55(2)(a) & (b)
  • Labour Relations Actsection 56
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment cause for unfair termination and breach of contract)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jack Omega Oliech v Kibos Sugar & Allied Industries Ltd [2021] KEELRC 1556 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1556/eng@2021-06-16

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