Dickson Onyango Okoth v Nyati (2002) Kenya Limited [2021] KEELRC 2157 (KLR)
The bottom line
#A Kenyan employer who fired a worker by SMS without notice or a hearing was ordered to pay ten months' salary as compensation.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness and fairness of the summary dismissal
The dismissal was unlawful and unfair: the claimant received no notice, no opportunity to be heard and no terminal benefits
The claimant's uncontroverted testimony established that he was sent away on 8/9/2015 and dismissed by SMS on 10/9/2015 for allegedly absconding duty, without being given a chance to explain himself and without a disciplinary hearing. Uncontroverted testimony was taken as proof on a balance of probabilities, engaging Sections 36, 41, 43 and 45 of the Employment Act.
Entitlement to severance pay
Severance pay was refused because redundancy was not established
Severance pay under the Employment Act is tied to declaration of redundancy. Since the claimant was summarily dismissed for alleged absconding and not declared redundant, the claim for severance pay was not proved and was disallowed.
Quantum of compensation for unfair dismissal
Compensation of ten months' salary (Kshs.120,000) awarded under section 49(1)(c) and (4)
The court considered the claimant's 9 years of diligent service, his non-contribution to the termination, the absence of any payment on dismissal, and the loss of livelihood and prospects. Guided by Abisalom Ajusa Magomere v Kenya Nut Company Limited, where 12 months was awarded, it settled on 10 months.
Legal principles established
#- An employee dismissed without notice and without a hearing is unlawfully and unfairly dismissed in violation of Sections 36, 41, 43 and 45 of the Employment Act, 2007
- Under section 49(1)(c) and (4) of the Employment Act, a long-serving employee who did not contribute to the termination and received no hearing may be awarded the equivalent of several months' salary as compensation
Court orders
#- 1.Judgment entered in favour of the claimant against the respondent
- 2.Kshs.12,000 in lieu of one month's notice
- 3.Kshs.3,600 arrears of salary for 9 days worked and not paid
- 4.Kshs.120,000 compensation for unlawful and unfair dismissal (equivalent of 10 months' salary)
- 5.Total award stated as Kshs.115,600
- 6.Interest at court rates from the date of judgment until payment in full
- 7.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 36, 41, 43, 45 and 49 invoked); judgment delivered remotely under Article 159(2)(d) and Article 48 of the Constitution and Section 18 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dickson Onyango Okoth v Nyati (2002) Kenya Limited [2021] KEELRC 2157 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2157/eng@2021-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.