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ELRCPartially AllowedEmployment and Labour Relations Cause (Nakuru) filed 9th September 2019, Memorandum of Claim dated 16th August 2019· [2022] KEELRC 1035 (KLR)

George Okoth Okello v Africa Blooms Limited & another [2022] KEELRC 1035 (KLR)

Employment and Labour Relations Court of Kenya
21 January 2022
HWHellen WasilwaDND. Nderitu
3,559 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled the dismissal unfair because the employer proved no valid reason and skipped the disciplinary hearing, awarding over Kshs 1.4 million.

What this practically means

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Executive summary

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The claimant, employed from April 2011 and terminated by the 1st Respondent in April 2014, was re-engaged and appointed by the 2nd Respondent as plant protection/production manager by letter dated 1st April 2014. He earned Kshs. 120,000 (Kshs. 115,000 basic plus Kshs. 5,000 house allowance). After show cause correspondence in December 2018 concerning deteriorating performance in Greenhouse B9, and a meeting on 15th December 2018, he was issued a termination letter the same day, effective 20th December 2018, on account of poor performance. He sued for declarations of unfair termination and discrimination, house allowance, service pay, 12 months' compensation and general damages of Kshs. 10,000,000 for racial discrimination, alleging unequal treatment compared to Indian counterparts. The respondents denied the claims, contending the termination followed due procedure, and objected that the claim against the 1st Respondent was time barred under section 90 of the Employment Act. The court framed three issues: validity of reasons, due process, and remedies. It found the respondents had not established valid reasons under section 43 and that no disciplinary hearing was conducted, contravening section 41, rendering the termination unfair under section 45(2). The court awarded house allowance of Kshs. 281,750, compensation of 10 months' salary (Kshs. 1,150,000), less statutory deductions, and a certificate of service. The claim against the 1st Respondent was dismissed as time barred, and the 2nd Respondent was ordered to pay the decretal sum and costs. No discrimination award was made.

Key legal issues

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01

Whether there were valid reasons to warrant dismissal of the claimant

Holding

The respondents failed to establish valid reasons for the termination under section 43 of the Employment Act

Reasoning

The claimant was accused of deteriorating performance, but no performance appraisal or measurable performance standards were proved by the employer. The employer bears the burden under section 43 to prove the reasons for termination, failing which the termination is deemed unfair under section 45. Production had dropped and warnings were issued, but the employer did not demonstrate the validity of the reasons at the time of termination.

p. 5
02

Whether the claimant was subjected to due process

Holding

No disciplinary hearing was conducted; the claimant was not given an opportunity to be heard, contravening section 41

Reasoning

The claimant was given a show cause letter and responded, and a meeting of 15.12.2018 resolved that disciplinary action be taken, but there is no indication any disciplinary hearing proceeded; no letter summoning the claimant to a disciplinary hearing was produced. On the same day, 15th December 2018, the claimant was issued with a termination letter, denying him the hearing envisaged by section 41 of the Employment Act.

p. 5
03

Whether the claimant was discriminated against

Holding

The discrimination claim was not proved; the court made no finding of discrimination and awarded no damages on this head

Reasoning

The claimant alleged unequal pay and treatment compared to employees of Indian descent, but on cross-examination he conceded he had a medical cover from AAR and that the respondent provided transport. The court did not award the declaration of discrimination or general damages of Kshs. 10,000,000 sought, and the remedies awarded do not include any discrimination award.

p. 3
04

What remedies the claimant is entitled to

Holding

House allowance of Kshs. 281,750 and 10 months' compensation of Kshs. 1,150,000, a certificate of service, payable by the 2nd Respondent; claim against 1st Respondent dismissed as time barred

Reasoning

Having found the termination unfair, the court awarded house allowance not paid from February 2017 to December 2018 (15% of basic pay less Kshs. 5,000 paid) and compensation equivalent to 10 months' salary. Service pay was not awarded as NSSF deductions were remitted. The claim against the 1st Respondent was dismissed, the cause of action having arisen in 2014 and thus caught by section 90 limitation.

p. 5

Legal principles established

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  • An employer must prove the reason for termination; failure renders the termination unfair under section 45
  • Before termination on grounds of poor performance the employer must notify and hear the employee as required by section 41 of the Employment Act
  • A termination is unfair where the employer fails to prove a valid reason, a fair reason and fair procedure

Court orders

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  1. 1.House allowance not paid from February 2017 to December 2018 awarded at 12,250 x 23 = Kshs. 281,750
  2. 2.Compensation for unfair termination equivalent to 10 months' salary = Kshs. 1,150,000, less statutory deductions
  3. 3.The claimant be issued with a Certificate of Service
  4. 4.The 2nd Respondent to pay the decretal sum and costs of this suit
  5. 5.Claim against the 1st Respondent dismissed

Authorities

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Legislation

  • Employment ActSection 41(1) and (2)
  • Employment ActSection 43(1) and (2)
  • Employment ActSection 45(1) and (2)
  • Employment ActSection 90
  • Employment ActSection 51
  • Evidence ActSections 107 and 108
  • ILO Convention Number 111, Discrimination (Employment and Occupation) Convention, 1958Section 5(2)(3)(4)(6) as cited by claimant

Cases cited (7)

  • Kenfreight (EA) Limited V Benson K Nguti
    [2016] eKLR
  • Jane Samba Mukal V Ol Tukai Lodge limited
    [2013] eKLR
  • Janine Buss V Gems Cambridge international school limited
    [2016] eKLR
  • Matthew Kamanu Mwaura V permanent secretary office of the President provincial administration & 2 others
    [2018] eKLR
  • Salmon V Salmon and co limited
    (1897) AC
  • Judicial Service Commission V Gladys Boss Sholei and another
    [2014] eKLR
  • Kenya Railways Cooperation V Gideon K Mutinda and 2 other
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (claim for unfair termination and discrimination)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "George Okoth Okello v Africa Blooms Limited & another [2022] KEELRC 1035 (KLR)", Case Analysis (2022). Employment and Labour Relations Cause (Nakuru) filed 9th September 2019, Memorandum of Claim dated 16th August 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1035/eng@2022-01-21

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