Otieno v Mega Garments Industires [EPZ] Ltd (Appeal E068 of 2021) [2022] KEELRC 1144 (KLR)
The bottom line
#Kenya's Employment Court ruled that firing a worker without a hearing is unfair, even if the employer claims the worker absconded.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant's employment was terminated or whether she absconded
On a balance of probability, the Respondent terminated the Appellant's employment as pleaded by the Appellant; the absconding claim was rejected
The Appellant's evidence of being told to go home and await recall was not rebutted by RW-1. The Respondent's leave and absconding narrative was unsupported: the leave form was incomplete, unapproved and unsigned by the General Manager, no memo or notice asking employees to take leave was exhibited, the supervisor was not called to testify, and a six-month contract employee entitled to 2 days leave per month could not credibly take 30 days' leave.
Whether the termination was unfair
The termination was unfair for non-compliance with Section 41 of the Employment Act 2007
Relying on Janet Nyandiko v Kenya Commercial Bank Ltd and National Bank of Kenya v Samuel Nguru Mutonya, the court held the Respondent failed to prove a valid and fair reason and did not follow the mandatory procedure of explaining reasons and hearing the employee. The Respondent admitted it issued no show-cause notice and held no disciplinary hearing.
What remedies flow from the unfair termination
Ten months' salary compensation awarded; notice pay, leave pay and unexpounded contract claims declined; certificate of service ordered
Taking into account the circumstances and manner of termination, the court exercised its discretion under Section 49 to award ten months' salary. Notice pay was shown to have been paid, leave payments appeared in payslips, and compensation for the unexpired contract is not a recognized head under Section 49. A certificate of service is mandatory under Section 51(1).
Legal principles established
#- An employer contemplating termination must comply with the mandatory procedural requirements of Section 41 of the Employment Act 2007, including explaining reasons to the employee and hearing representations
- An employer alleging desertion/absconding attracting summary dismissal under Section 44 must nonetheless invoke Section 41 procedure
Court orders
#- 1.Set aside the Lower Court's judgment dated 26th August 2021 and substitute it with judgment in favour of the Appellant for ten months' salary being compensation for unfair termination (Ksh 17,000 x 10 = Ksh 170,000)
- 2.The Respondent to pay costs of the appeal and of the proceedings in the Court below
- 3.The Respondent to issue the Appellant with a Certificate of Service under Section 51(1) of the Employment Act 2007 within thirty days of the judgment, if not already done
- On appeal from
- Mombasa Chief Magistrate's Court (ELR Case No. 54 of 2018)
- ELR Case No. 54 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court employment and labour relations appeal (Memorandum of Appeal dated 27th September 2021)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno v Mega Garments Industires [EPZ] Ltd (Appeal E068 of 2021) [2022] KEELRC 1144 (KLR)", Case Analysis (2022). Appeal against Mombasa Chief Magistrate's Court ELR Case No. 54 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1144/eng@2022-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.