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ELRCPartially AllowedNot stated in judgment· [2021] KEELRC 1805 (KLR)

Herman Rachami Abuya v Devki Steel Mills Limited [2021] KEELRC 1805 (KLR)

Employment and Labour Relations Court
8 April 2021
OMONESMUS N. MAKAU
2,448 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer that sacks a worker without valid reasons, a fair hearing, and solid evidence will lose an unfair termination case and pay damages.

What this practically means

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Executive summary

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The Claimant, employed as a Security Officer from 2013 until March 2015 on a salary rising to Kshs. 28,528, sued the Respondent alleging unlawful and unfair termination, seeking Kshs. 519,914, interest, costs and a certificate of service. The Respondent denied unfair termination, contending the Claimant fought a fellow employee and deserted work despite phone calls urging him to return, and that terminal dues were paid through his bank account. Both parties testified and filed submissions; the Claimant relied on authorities on valid reason and fair procedure, while the Respondent relied on authority holding that an employee who declines a disciplinary hearing may be fairly dismissed. The court framed two issues: whether the dismissal was unfair and unlawful, and whether the reliefs were payable. On the evidence, the Attendance Sheets indicated that the Claimant's services were terminated on 13.3.2015, after which he stopped attending work; the court found the Respondent failed to prove desertion or that it contacted the Claimant before termination. The alleged calls were unsupported by evidence, and the HR Manager who allegedly withdrew the Claimant's gate pass was not called to rebut that evidence. The termination was therefore found unfair and unlawful under section 45 of the Employment Act. The court awarded one month's notice pay and three months' salary as compensation (total Kshs. 109,433, compensation subject to statutory deductions), granted the certificate of service, with costs and interest, but dismissed the claims for service pay, house allowance and overtime for want of proof.

Key legal issues

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01

Whether the dismissal was grounded on a valid and fair reason

Holding

The Respondent failed to prove desertion; the attendance records indicated services were terminated, not that the Claimant absented himself after the assault matter was resolved

Reasoning

The Respondent alleged the Claimant deserted work after an assault incident was resolved at the police station. The Attendance Sheets produced showed at entry no. 72 that the Claimant worked on 13.3.2015 and that his services were terminated, indicating he stopped attending work only after termination. The court therefore held the Respondent failed to prove desertion on a balance of probability.

p. 3
02

Whether a fair procedure under section 41 was followed

Holding

No fair procedure was proved; alleged phone calls to the Claimant were not evidenced, and no hearing was accorded

Reasoning

RW1 alleged he made several calls asking the Claimant to report back and explain his absence, but no call logs or other evidence were produced. The employer also failed to call Mr. Stephen Musyoka, who allegedly withdrew the gate pass, despite still being its HR Manager. The court found the procedural requirements of section 41 were not satisfied.

p. 3
03

Whether the Claimant was entitled to the reliefs sought

Holding

Notice pay and three months' compensation awarded; service pay, house allowance and overtime claims dismissed; certificate of service granted

Reasoning

The court awarded one month's salary in lieu of notice and three months' salary as compensation, considering the two years of service without prior warnings. Service pay was barred by section 35(6) given NSSF contributions, house allowance was not proved as pay was stated as gross, and overtime lacked particulars and evidence. The certificate of service was granted under section 51.

p. 3

Legal principles established

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  • Under section 45 of the Employment Act, termination is unfair if the employer fails to prove valid and fair reasons and a fair procedure
  • Section 41 requires the employer to explain the reasons for termination to the employee and accord him a hearing before terminating for misconduct
  • The burden lies on the employer to prove the reason and procedure on a balance of probability; uncorroborated allegations of phone calls without evidence fail

Court orders

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  1. 1.Judgment entered for the Claimant in the sum of Kshs. 109,433.00 comprising notice pay of Kshs. 23,849.00 and compensation of Kshs. 85,584.00, the compensation being subject to statutory deductions
  2. 2.Certificate of Service granted
  3. 3.Costs of the suit to the Claimant with interest from the date of judgment

Authorities

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Legislation

  • Employment Actsection 44(4)
  • Employment Actsection 45
  • Employment Actsection 41
  • Employment Actsection 35(6)
  • Employment Actsection 51
  • ELRC Procedure RulesRule 28(3)

Cases cited (3)

  • Fredrick Odong Owegi v CFC Assurance Ltd
    [2014]eKLR
  • Antony Mkaba Chitavi v Malindi Water and Sewerage Co. Ltd
    [2013]eKLR
  • Lydiah Wambui Wahome v 2NK Sacco Society Ltd & Another
    [2017]eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (termination of employment claim)

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, "Herman Rachami Abuya v Devki Steel Mills Limited [2021] KEELRC 1805 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1805/eng@2021-04-08

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