Clifford Ochieng Abila v National Cereals And Produce Board [2022] KEELRC 587 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Procedural fairness
The Respondent substantially complied with sections 35(1) and 41 of the Employment Act, 2007.
The Respondent issued a show-cause notice on 4 November 2015, received the Claimant's response, suspended him for investigations, invited him to an oral hearing with notice of the right to be accompanied, allowed him to make representations, and notified him of dismissal. Although there was no record that the Claimant's appeal was considered, the Court held this amounted to substantial compliance with the statutory procedural fairness requirements.
Substantive fairness
The dismissal was not for valid or fair reasons because the Respondent led no evidence to discharge its burden under sections 43 and 45.
Sections 43 and 45 impose a burden on employers to prove, as valid and fair, the reasons for dismissal. The Respondent closed its case without leading any evidence after the Court declined to accept its late-filed documents, having found its approach to the litigation casual. With no evidence before it, the Court had no option but to conclude the dismissal lacked valid and fair reasons.
Compensation
Compensation equivalent to 8-months gross salary (Kshs 331,120/-) was appropriate.
The Claimant served for about 8 years, earning gross salary of Kshs 41,390/- as at September 2015. The Court also took into account that it did not have the benefit of hearing the Respondent's defence because the Respondent was locked out of leading evidence owing to its casual approach to the litigation. On these considerations it settled on 8-months gross salary.
Legal principles established
#- An employer bears the burden under sections 43 and 45 of the Employment Act to prove that the reasons for dismissal are valid and fair; failure to lead evidence means the dismissal is not for valid or fair reasons
- Substantial compliance with statutory procedural fairness requirements under sections 35(1) and 41 of the Employment Act suffices
Court orders
#- 1.Declaration that although the Respondent was in substantial compliance with procedural fairness requirements, it did not discharge the burden under sections 43 and 45 of the Employment Act, 2007, and the dismissal was not for valid or fair reasons
- 2.Award of compensation equivalent to 8-months gross salary, Kshs 331,120/-
- 3.Costs of the Cause to the Claimant on half-scale
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination of employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Clifford Ochieng Abila v National Cereals And Produce Board [2022] KEELRC 587 (KLR)", Case Analysis (2022). Cause (not stated in judgment; employment cause filed 14 November 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/587/eng@2022-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.