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ELRCPartially AllowedNot stated in the judgment as provided· [2022] KEELRC 739 (KLR)

Erick Ochieng Odhiambo v Fish Processors [2000] Limited [2022] KEELRC 739 (KLR)

Employment and Labour Relations Court
24 February 2022
MNMathews N. Nduma
1,342 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employer was ordered to pay a 13-year worker for firing him after he sued over a workplace injury.

What this practically means

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Executive summary

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The claimant, employed by the respondent from April 2003 as a general worker earning Kshs 8,000 per month, sued for unfair termination. He testified that after injuring his hand at work in August 2014 and filing a compensation suit against the respondent, he was summoned by the respondent's directors upon service of court summons and told to choose between the case and his job. He was verbally dismissed on the spot on 8th April 2016 without notice, notice to show cause or hearing. The respondent, through its Head of Administration and Human Resource, contended that the claimant absconded duties on 5th April 2016 and never returned, that all hospital bills were paid, that NSSF and NHIF dues were remitted, and that the claim should be dismissed with costs. The court framed two issues: whether the claimant was unlawfully dismissed or absconded, and entitlement to reliefs. Accepting the claimant's testimony as credible, and noting that R.W.1 evaded the issue of the civil suit and that the directors did not testify, the court found the claimant was summarily dismissed verbally, for no valid reason and without fair procedure, in violation of Sections 36, 41, 43 and 45 of the Employment Act. Applying Section 49(1)(c) and (4), and following Lokitala Kawae v Colours Crops Limited where 10 months' compensation was awarded for lack of due process, the court awarded 10 months' salary (Kshs 80,000), one month's salary in lieu of notice (Kshs 8,000), Kshs 2,133 unpaid April salary and Kshs 800 unremitted NSSF dues - a total of Kshs 82,933 - with interest at court rates and costs of the suit. The claim succeeded in part; the underpayment arrears sought were not awarded and no certificate of service order appears in the final orders.

Key legal issues

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01

Whether the claimant was dismissed or absconded

Holding

The court found the claimant was summarily dismissed for suing the respondent over a workplace injury; the abscondment narrative was incredible

Reasoning

The claimant testified credibly that the directors gave him a choice between withdrawing his personal injury suit and his job, then dismissed him on the spot without notice or hearing. R.W.1, who was not present at the dismissal, gave no contradicting evidence, and the directors did not testify to rebut the claimant's account.

p. 2
02

Whether the dismissal was lawful and fair

Holding

Dismissal without notice, notice to show cause or hearing violated Sections 36, 41, 43 and 45 of the Employment Act and was wrongful and unfair

Reasoning

The employer dismissed the claimant verbally and summarily without any of the procedural safeguards in the Employment Act. The reason - the employee's pursuit of compensation for a work injury - was itself unlawful. Compensation under Section 49(1)(c) and (4) followed, assessed at 10 months' salary.

p. 2

Legal principles established

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  • A dismissal because an employee has sued the employer for work injury compensation is for no valid reason and without fair procedure, violating Sections 36, 41, 43 and 45 of the Employment Act
  • An employee who diligently serves for 13 years with no bad record, and who was injured in the course of duty without compensation, merits substantial compensation under Section 49(1)(c) and (4)

Court orders

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  1. 1.Equivalent of 10 months' salary (Kshs 80,000) in compensation for wrongful and unfair dismissal
  2. 2.One month's salary in lieu of notice (Kshs 8,000)
  3. 3.Unpaid salary for April in the sum of Kshs 2,133
  4. 4.Kshs 800 being unremitted National Social Security Fund dues
  5. 5.Interest at court rates from date of judgment till payment in full
  6. 6.Costs of the suit

Authorities

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Legislation

  • Employment Act, 2007Sections 36, 41, 43, 45, 49(1)(c) and (4), 51
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (1)

  • Lokitala Kawae & Another –vs- Colours Crops Limited
    ELRC Cause Nos. 27 and 26 of 2018 eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007; Section 51 referred to)

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, "Erick Ochieng Odhiambo v Fish Processors [2000] Limited [2022] KEELRC 739 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/739/eng@2022-02-24

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