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ELRCPartially AllowedStatement of Claim dated July 12, 2019· [2023] KEELRC 33 (KLR)

Ogana v David Engineering Limited (Cause 591 of 2019) [2023] KEELRC 33 (KLR)

Employment and Labour Relations Court
19 January 2023
LNLINNET NDOLO
1,351 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who fires an employee overnight without a hearing and without proving misconduct must pay over Kshs 824,000 in compensation, notice pay, interest, and legal costs.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as an Assistant Workshop Supervisor from August 2007, sued for unpaid dues, notice pay, unlawful deductions, twelve months' salary in compensation, punitive damages, a certificate of service and costs following the termination of his employment. The Respondent asserted that the Claimant had either voluntarily resigned or was fairly dismissed for gross misconduct, namely operating Quafab Enterprises, a business said to compete with the Respondent. The court framed two issues: whether the termination was unlawful and whether the Claimant was entitled to the remedies sought. Although the Claimant was indeed a co-proprietor of Quafab Enterprises, no evidence proved he competed with the employer, and the allegations in the dismissal letter were never put to him for a response. Suspended on February 19, 2019 and dismissed the following day, the Claimant was denied any disciplinary process. Applying the Court of Appeal's decision in Pius Machafu Isindu v Lavington Security Guards Limited, the court held the dismissal wrongful and unfair. The court awarded six months' salary in compensation (Kshs 618,000) tempered by the Claimant's documented negative employment record, plus two months' notice pay (Kshs 206,000), totaling Kshs 824,000 with interest at court rates from the date of judgment. Claims for salary arrears, unlawful deductions and punitive damages were disallowed for lack of evidence. The Claimant was granted a certificate of service and costs of the case.

Key legal issues

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01

Whether the Claimant was unlawfully terminated

Holding

Yes - the summary dismissal was wrongful and unfair as the allegations were not proved and no disciplinary hearing was afforded

Reasoning

The Respondent's own letter and witness confirmed summary dismissal for gross misconduct based on conflict of interest and competition. Although the Claimant was a co-proprietor of Quafab Enterprises, no evidence proved he competed with the employer. He was suspended on February 19 and dismissed the next day with no chance to respond to the allegations. Relying on Pius Machafu Isindu, the court held the statutory process was not followed.

p. 4
02

Whether the Claimant was entitled to the remedies sought

Holding

Partly - 6 months' salary compensation and 2 months' notice pay awarded; other heads disallowed for lack of evidence

Reasoning

The court considered the Claimant's long service since 2007 but tempered the award at six months due to his documented negative employment record. Notice pay of two months followed the letter of appointment. Salary arrears were shown to have been paid; unlawful deductions and punitive damages were unsupported by evidence.

p. 4

Legal principles established

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  • An employer must prove valid and fair reasons for summary dismissal and must follow the notification and hearing process required by section 41 of the Employment Act
  • Allegations of conflict of interest and competition against the employer, if not presented to the employee for response and not proved, render a summary dismissal unfair

Court orders

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  1. 1.Judgment entered in favour of the Claimant for Kshs 618,000 being 6 months' salary in compensation
  2. 2.Kshs 206,000 being 2 months' salary in lieu of notice; total award Kshs 824,000
  3. 3.Interest at court rates from the date of judgment until payment in full
  4. 4.Certificate of service to be issued to the Claimant
  5. 5.Costs of the case to the Claimant

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 47(5)

Cases cited (1)

  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination claim)

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, "Ogana v David Engineering Limited (Cause 591 of 2019) [2023] KEELRC 33 (KLR)", Case Analysis (2023). Statement of Claim dated July 12, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/33/eng@2023-01-19

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