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ELRCPartially AllowedStatement of claim dated 30th August, 2016 (cause number not stated in judgment)· [2022] KEELRC 639 (KLR)

Benson Makori Obiri v Master Fabricators Limited [2022] KEELRC 639 (KLR)

Employment and Labour Relations Court
24 February 2022
2,686 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled the dismissal unfair because the employer proved no valid reason and skipped the mandatory disciplinary procedure, awarding Kshs.294,000.

What this practically means

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Executive summary

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The Claimant, formerly a Workshop Manager with Masters Fabricators earning Kshs.70,000/= per month, sued for unfair termination following his summary dismissal on 8th August, 2016. The dismissal followed suspicions of theft of spare parts worth approximately Kshs.1.7 million at the Respondent's premises and accusations that the Claimant compromised his integrity by receiving tokens from a garbage collector, misused company LPOs to fuel his personal car, and favoured workers from his tribe. The court framed three issues: whether there was a valid reason for dismissal, whether the right procedure was followed, and whether the Claimant was entitled to his prayers. Applying Sections 41, 43 and 45 of the Employment Act, the court found the accusations rested on unsigned, unverified statements of witnesses who were never called to testify, with no authentic evidence of the losses. The disciplinary process was also procedurally flawed: there was no invitation letter, the meeting was recorded without consent, and the minutes were unsigned. The termination failed both the substantive justification and procedural fairness limbs. The court awarded one month's salary in lieu of notice (Kshs.70,000/=), three months' salary as general damages (Kshs.210,000/=), and salary up to 9th August, 2016 (Kshs.14,000/=), totalling Kshs.294,000/=. Claims for three months' notice, 240 months' compensation, outstanding leave and loss of vehicle use were declined. Costs were awarded to the Claimant with interest from the date of judgment, and the Respondent was ordered to issue a certificate of service.

Key legal issues

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01

Whether there was a valid and proved reason for the dismissal

Holding

No valid or proved reason was established; the accusations rested on unverified, unsigned statements of witnesses not called to testify.

Reasoning

The accusations were based on statements allegedly written by colleagues. The court found no authentic evidence showing how the alternators were stolen or the exact losses. Witnesses such as Nandhwa and Kasee did not testify or sign the minutes, and their statements' authorship was unclear. Allegations of tribal favouritism had no supporting evidence from any worker.

p. 3
02

Whether the termination procedure complied with Section 41 of the Employment Act

Holding

The termination was unprocedural; there was no invitation letter, no explanation of wrongdoing, and no advice of the right to a representative.

Reasoning

Section 41(1) requires the employer to explain the reasons for termination in a language the employee understands and allow a representative. The Claimant received no invitation letter, was unaware the meeting was a disciplinary hearing, and the meeting was recorded without his consent. Minutes were unsigned, tainting the whole process.

p. 4
03

Whether the employer discharged its burden of proving fair reasons under Sections 43 and 45

Holding

The employer failed the fairness test under Sections 41, 43 and 45; the termination was unfair and judgment entered for the Claimant.

Reasoning

Section 43 places the duty on the employer to prove reasons for termination are fair. Mere suspicion is insufficient. The court associated itself with the observations in Jeremiah Ochieng Ponde that termination must be based on valid and fair reasons established through an internal investigation process.

p. 4

Legal principles established

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  • For a termination to pass the fairness test, there must be both substantive justification and procedural fairness.
  • The procedure in Section 41 of the Employment Act is mandatory.
  • Statements of persons not called as witnesses cannot be substantiated or verified.

Court orders

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  1. 1.Judgment entered in favour of the Claimant
  2. 2.One month salary in lieu of notice awarded: Kshs.70,000/=
  3. 3.General damages for unfair termination equivalent to 3 months' salary: Kshs.210,000/=
  4. 4.Salary up to 9th August, 2016 awarded: Kshs.14,000/=
  5. 5.Total award of Kshs.294,000/= less any sums already paid
  6. 6.Costs awarded to the Claimant
  7. 7.Interest to accrue until full payment from date of judgment
  8. 8.Claimant to be issued with a certificate of service

Authorities

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Legislation

  • Employment ActSection 45(1)
  • Employment ActSection 45(2)
  • Employment ActSection 43
  • Employment ActSection 41(1)
  • Employment ActSection 42(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (2)

  • WALTER OGAL ONURO VS TEACHERS SERVICE COMMISSION
    Cause No.955 of 2011
  • JEREMIAH OCHIENG PONDE & 3 OTHERS VS BORDELESS TRACKING SYSTEMS LIMITED
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act)

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, "Benson Makori Obiri v Master Fabricators Limited [2022] KEELRC 639 (KLR)", Case Analysis (2022). Statement of claim dated 30th August, 2016 (cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/639/eng@2022-02-24

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