Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2021] KEELRC 2157 (KLR)

Dickson Onyango Okoth v Nyati (2002) Kenya Limited [2021] KEELRC 2157 (KLR)

Employment and Labour Relations Court
10 February 2021
853 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

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

#
The claimant, employed by the respondent on 9/9/2006 as a welder on a monthly salary of Kshs.12,000, sued for notice pay, severance pay for 9 years, 9 days' unpaid salary, compensation for unlawful termination, costs and interest. He testified that on 8/9/2015, while working at Boita Tea Factory in Kericho, he and a colleague went to look for a cable and on their return were barred by the gate man on the site manager's instructions; on 10/9/2015 he received an SMS from the site manager dismissing him for absconding duty. He was never given an opportunity to explain himself, never faced a disciplinary hearing, and received no notice, notice pay or terminal benefits. The respondent did not enter appearance or file a response despite service, and the claim proceeded by formal proof on the claimant's affidavit evidence sworn on 16th November 2020. The court found the uncontroverted testimony proved unlawful and unfair dismissal in violation of Sections 36, 41, 43 and 45 of the Employment Act, 2007. Notice pay of Kshs.12,000 and 9 days' unpaid salary of Kshs.3,600 were awarded; severance pay was disallowed because the claimant was not declared redundant. Applying section 49(1)(c) and (4) and guided by Abisalom Ajusa Magomere v Kenya Nut Company Limited, the court awarded compensation equivalent to ten months' salary, Kshs.120,000, citing the claimant's 9 years of diligent service, non-contribution to the termination and loss of livelihood. Judgment was entered for the claimant with interest at court rates from the date of judgment and costs of the suit. The judgment was delivered online pursuant to COVID-19 directions, with the parties' consent, under Article 159(2)(d) and Article 48 of the Constitution and Section 18 of the Civil Procedure Act.

Key legal issues

#
01

Lawfulness and fairness of the summary dismissal

Holding

The dismissal was unlawful and unfair: the claimant received no notice, no opportunity to be heard and no terminal benefits

Reasoning

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.

p. 2
02

Entitlement to severance pay

Holding

Severance pay was refused because redundancy was not established

Reasoning

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.

p. 2
03

Quantum of compensation for unfair dismissal

Holding

Compensation of ten months' salary (Kshs.120,000) awarded under section 49(1)(c) and (4)

Reasoning

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.

p. 2

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. 1.Judgment entered in favour of the claimant against the respondent
  2. 2.Kshs.12,000 in lieu of one month's notice
  3. 3.Kshs.3,600 arrears of salary for 9 days worked and not paid
  4. 4.Kshs.120,000 compensation for unlawful and unfair dismissal (equivalent of 10 months' salary)
  5. 5.Total award stated as Kshs.115,600
  6. 6.Interest at court rates from the date of judgment until payment in full
  7. 7.Costs of the suit to the claimant

Authorities

#

Legislation

  • Employment ActSections 36, 41, 43, 45, 49(1)(c) and 49(4)
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (1)

  • Abisalom Ajusa Magomere –vs- Kenya Nut Company Limited
    [2014] eKLR
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.