Omuit v Texas Alarms [K] Ltd (Cause 894 of 2017) [2022] KEELRC 1098 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Date of commencement of employment
The Claimant was employed on 9th October 2015, not 2009
The Claimant never denied applying for employment on 28th August 2015, furnishing a referee's letter, signing a declaration on 7th September 2015 and signing a letter of employment on 9th October 2015. He failed to demonstrate a valid and running contract prior to 9th October 2015, undermining his claim built on service from 2009.
Whether employment was terminated or the Claimant deserted
The Claimant's employment was terminated by the Respondent on 6th March 2016
The Respondent alleged the Claimant was arrested by police over a theft incident but adduced no evidence of the incident, the police report, or the arrest. The Respondent also failed to show what action it took upon alleged desertion, such as contacting the Claimant's referee. On a balance of probability the desertion narrative was rejected.
Whether the termination was unfair
The termination was both procedurally and substantively unfair
No evidence showed compliance with Section 41 of the Employment Act (explanation and hearing before termination), and no valid reasons for the termination were given. The court applied Kenfright (E.A) Limited v Benson K. Nguti on the employer's duty to hear the employee before termination.
Reliefs payable
Compensation of nine months' salary, one month's salary in lieu of notice, and pro-rata leave allowance were awarded; house allowance and public holiday claims were declined
Having found unfair termination, the court awarded the equivalent of nine months' salary. Notice pay was allowed because no termination notice was shown to have been served. Leave allowance was limited to the ksh.6,000 the Respondent admitted as pro-rata dues. House allowance was covered in the daily rate per payslips, and public holiday claims were not specifically pleaded or proved.
Legal principles established
#- An employer alleging desertion must show the steps it took to inform the employee that dismissal would result if they did not report back to work
- An employer must comply with the procedural requirements of Section 41 of the Employment Act - explain the reasons for termination and hear the employee's representations - before terminating employment
- A claim for unpaid public holidays must specifically plead the particular holidays worked and prove attendance on those dates; general allegations are insufficient
Court orders
#- 1.Judgment entered in favour of the Claimant against the Respondent for nine months' salary being compensation for unfair termination of employment of ksh.104,600
- 2.One month salary in lieu of notice of ksh.11,400
- 3.Pro-rata leave allowance of ksh.6,000
- 4.Total award of ksh.122,000
- 5.The Claimant is awarded costs of the suit and interest at Court rates
- Jurisdiction invoked
- First-instance claim under the Employment Act before the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omuit v Texas Alarms [K] Ltd (Cause 894 of 2017) [2022] KEELRC 1098 (KLR)", Case Analysis (2022). Cause No 894 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1098/eng@2022-06-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.