Benson Makori Obiri v Master Fabricators Limited [2022] KEELRC 639 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether there was a valid and proved reason for the dismissal
No valid or proved reason was established; the accusations rested on unverified, unsigned statements of witnesses not called to testify.
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.
Whether the termination procedure complied with Section 41 of the Employment Act
The termination was unprocedural; there was no invitation letter, no explanation of wrongdoing, and no advice of the right to a representative.
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.
Whether the employer discharged its burden of proving fair reasons under Sections 43 and 45
The employer failed the fairness test under Sections 41, 43 and 45; the termination was unfair and judgment entered for the Claimant.
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.
Legal principles established
#- 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
#- 1.Judgment entered in favour of the Claimant
- 2.One month salary in lieu of notice awarded: Kshs.70,000/=
- 3.General damages for unfair termination equivalent to 3 months' salary: Kshs.210,000/=
- 4.Salary up to 9th August, 2016 awarded: Kshs.14,000/=
- 5.Total award of Kshs.294,000/= less any sums already paid
- 6.Costs awarded to the Claimant
- 7.Interest to accrue until full payment from date of judgment
- 8.Claimant to be issued with a certificate of service
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.