Otieno v Toyota Kenya Limited (Cause E049 of 2021) [2023] KEELRC 432 (KLR)
The bottom line
#A Kenyan court ruled Toyota Kenya unfairly dismissed an employee without a hearing and without proof, awarding him over Ksh 925,000.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the termination
Termination was procedurally unfair because the Respondent did not comply with Section 41 of the Employment Act - no show cause letter, no hearing, and the excuse of abscondment was rejected.
Section 41 mandates explanation of reasons to the employee and a hearing before termination. RW-2 admitted no show cause letter was issued and no disciplinary hearing was held. The abscondment narrative failed because the Respondent, the complainant in the criminal case, could have effected personal service; it had the Claimant's contacts and successfully reached him by registered post; and unrebutted evidence showed the Claimant reported to work as directed by the Network Manager.
Substantive justification of the termination
The Respondent failed to prove the validity of the reasons for termination; termination was substantively unfair.
The two customers who allegedly paid cash to the Claimant were not called to testify; the Cashier was not called; no evidence showed the nine units were released without receipts or by whom; no proper investigation was conducted; and the criminal court acquitted the Claimant under section 210 of the Criminal Procedure Code. The Respondent therefore did not prove a valid and fair reason related to the Claimant's conduct.
Reliefs
Eight months' salary compensation and one month's pay in lieu of notice awarded; certificate of service ordered; claims for salary arrears, leave, paternity leave and school fees savings declined as unpleaded and unproved.
Having found unfair termination, the Court exercised discretion under the Employment Act to award eight months' gross salary as compensation and notice pay since Section 35(1) was not complied with. Special damages claims required specific pleading and proof, which was absent. Section 51 entitled the Claimant to a certificate of service. The award is subject to statutory deductions under Section 49(2).
Legal principles established
#- Non-compliance with the mandatory procedure in Section 41 of the Employment Act renders termination procedurally unfair under Section 45(1)
- An employer cannot terminate without a hearing and then prove the allegations after termination; reasons must be proved before termination
- Fairness of termination requires both substantive justification and procedural fairness
Court orders
#- 1.The equivalent of eight months' salary being compensation for unfair termination of employment, Ksh 822,704.88
- 2.One month salary in lieu of notice, Ksh 102,838.11, total Ksh 925,542.99
- 3.The awarded sum shall be subject to statutory deductions pursuant to Section 49(2) of the Employment Act
- 4.The Respondent shall issue the Claimant with a Certificate of Service pursuant to Section 51 of the Employment Act within thirty days of this judgment
- 5.The Claimant is awarded costs of the suit and interest at Court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno v Toyota Kenya Limited (Cause E049 of 2021) [2023] KEELRC 432 (KLR)", Case Analysis (2023). Cause No E049 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/432/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.