Abisalom Omolo Opiyo v Kibos Sugar Co Ltd [2021] KEELRC 2175 (KLR)

Employment and Labour Relations Court

10 February 2021

RSRadido Stephen

1,047 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~4 min to read original · ~4 min brief

The bottom line

A Kenyan court ruled Kibos Sugar unfairly fired a worker who was never heard before dismissal, awarding him Kshs 105,000 but rejecting unproven wage claims.

What this practically means

Executive summary

The Claimant, employed by the Respondent from 2010 to 2017, challenged the termination of his employment effective 6 January 2017 on grounds of rudeness to supervisors and failure to report on duty on 1 January 2017. He testified that he was neither issued a show-cause notice nor given an opportunity to be heard. The Respondent's witness asserted that a show-cause notice dated 6 January 2017, invitations to a hearing, and a termination letter of 9 February 2017 were sent through the post office. The court found that a letter dated 3 January 2017 from the Electrical Manager directing termination demonstrated the decision to dismiss had already been taken before any hearing, and that the Claimant's fate had been sealed. His seven years of service converted his alleged casual employment into term employment under section 37 of the Employment Act, entitling him to written notice under section 35(1), which was not produced. The court declared the termination unfair and awarded six months' gross wages as compensation (Kshs 90,000/-) and one month's salary in lieu of notice (Kshs 15,000/-), totalling Kshs 105,000/-. The claims for underpayment, accrued leave, house allowance, overtime, and transport allowance all failed for want of proof: the prescribed minimum wages were not proved; leave carry-forward was not justified; daily rates include house allowance; working hours and applicable Wages Orders were not disclosed; the CBA extract was not shown signed or registered; and no evidential foundation supported the transport claim. The Respondent was ordered to issue a certificate of service within 21 days, and the Claimant was awarded costs.

Key legal issues

Whether termination of the Claimant's employment was unfair

Holding

Termination was unfair; the decision to dismiss had been made before any opportunity to be heard, and no written notice of termination was issued despite entitlement under sections 35(1) and 37

Reasoning

The Electrical Manager's letter of 3 January 2017 directing termination showed the decision had already been sealed before any hearing. The Claimant served for seven years, so his employment was converted from casual to term employment under section 37, entitling him to written notice under section 35(1). The Respondent's claim of hearings and show-cause notices post-dated the termination decision. Applying sections 37, 35(1) and 47(5), the court found the termination unfair.

p. 2

Entitlement to compensation and pay in lieu of notice

Holding

Six months' gross wages as compensation (Kshs 90,000/-) and one month's salary in lieu of notice (Kshs 15,000/-) awarded

Reasoning

The court took into account the length of service of approximately seven years in awarding the equivalent of six months' gross wages as compensation. It also allowed one month's salary in lieu of notice as the Claimant was entitled to written notice which was never issued.

p. 2

Whether the Claimant proved claims for underpayment, leave, house allowance, overtime and transport allowance

Holding

All these heads of claim failed for want of proof

Reasoning

The Claimant pleaded underpayment of Kshs 622,473/- anchored on prescribed minimum wages but did not prove what those minimum wages were. Leave carry-forward under section 28(4) was not justified. Daily rates include house allowance. Contractually agreed working hours and applicable Wages Orders underpinning the overtime claim were not disclosed, the CBA extract was not shown signed or registered, and no evidential foundation supported the transport allowance claim.

p. 2

Legal principles established

Casual employment engaged continuously converts to term employment under section 37 of the Employment Act
Where a decision to terminate predates any hearing, the termination is procedurally unfair
Daily-rated wages under the Regulation of Wages Amendment Orders are inclusive of house allowance

Court orders

1.Declaration that the Claimant's employment was terminated unfairly
2.Award of compensation of Kshs 90,000/- (equivalent of 6 months gross wages)
3.Award of one month's salary in lieu of notice of Kshs 15,000/-
4.Respondent to issue Certificate of Service within 21 days
5.Claimant to have costs of the suit

Authorities

Legislation

Employment Act, 2007section 37
Employment Act, 2007section 35(1)
Employment Act, 2007section 47(5)
Employment Act, 2007section 28(4)
Regulation of Wages Amendment OrdersNot specified

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Abisalom Omolo Opiyo v Kibos Sugar Co Ltd [2021] KEELRC 2175 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2175/eng@2021-02-10

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