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ELRCPartially AllowedCause No 340 of 2017· [2023] KEELRC 523 (KLR)

Onyango v Kibos Sugar & Allied Industries Ltd (Cause 340 of 2017) [2023] KEELRC 523 (KLR)

Employment and Labour Relations Court
2 March 2023
CBChristine N. Baari
2,808 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld a dismissal because the employee skipped his disciplinary hearings, but still awarded him notice pay and leave dues.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from around 2005/2007 as an Out-growers accountant earning up to Kshs.105,000, was in January/February 2014 asked to step aside on half salary to allow a forensic audit into suspected fraud. He was never summoned to answer audit queries and, per his account, received no communication from the Respondent after December 2014. The Respondent maintained that investigations found him culpable, that he was invited to disciplinary hearings on 08/08/2014, 11/09/2014 and 9/10/2014 by letters to his postal address, that he ignored all invitations, and that he was terminated on 3rd November 2014 with a 14-day appeal right he did not exercise. The Claimant sued in July 2017 seeking declarations, unpaid salary, terminal benefits including service pay and leave, notice pay, damages, a certificate of service, interest and costs. The court framed two issues: whether the termination was unfair, and whether the reliefs were payable. Holding that fairness requires both procedure and substantive justification under Sections 41, 43, 45 and 47(5) of the Employment Act, the court found the Respondent made efforts to accord a fair process which the Claimant declined by not attending, and held the termination not unfair, noting the suit filed close to the limitation period was an afterthought. The declarations and claims for withheld half salary and service pay (the Claimant being an NSSF member under Section 35(6)) were dismissed. The admitted claims for one month's notice pay and accrued leave for 2012–2013 were awarded, a certificate of service was to issue unconditionally, and each party was to bear its own costs.

Key legal issues

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01

Whether the Claimant was unfairly terminated

Holding

The termination was not unfair; the Respondent made efforts to accord the Claimant a fair process which he declined by not attending the scheduled hearings

Reasoning

The court noted undisputed suspension on half salary to allow investigations. The Respondent issued a notice to show cause and two invitations to disciplinary hearing sent to the Claimant's postal address, but he neither responded nor attended. Half salary stopping in November 2014 confirmed termination took effect then. The court held procedural and substantive fairness requirements under Sections 41, 43, 45 and 47(5) were met on the evidence, and noted the suit filed nearly three years later indicated an afterthought.

p. 5
02

Whether the Claimant is entitled to unpaid salary, service pay, damages and other reliefs

Holding

Only one month's salary in lieu of notice and accrued leave pay for 2012–2013 (admitted by the Respondent) were awarded; service pay and withheld half salary were refused

Reasoning

The declarations failed because the termination was fair. Half salary during suspension is recoverable only upon clearance of misconduct, which the Claimant never obtained as he skipped the hearings. NSSF membership barred service pay under Section 35(6). The Respondent conceded notice pay and accrued leave for 2012–2013, which the court awarded. A certificate of service was to issue unconditionally.

p. 6

Legal principles established

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  • A termination is fair only where both procedural fairness and substantive justification are met, requiring compliance with Sections 41, 43, 45 and 47(5) of the Employment Act
  • Half salary withheld during suspension or interdiction is recoverable only upon the employee being cleared of misconduct
  • Membership of NSSF disqualifies an employee from service pay under Section 35(6) of the Employment Act

Court orders

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  1. 1.That the Claimant's termination is not unfair
  2. 2.An order that the Claimant be paid one month's salary in lieu of notice and his accrued leave pay for the year 2012 – 2013
  3. 3.That the Claimant be issued with a Certificate of Service unconditionally
  4. 4.Parties shall bear their own costs of the suit

Authorities

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Legislation

  • Employment Act, 2007Section 35(6)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 10(6)

Cases cited (7)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Cola Cola East Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Elizabeth Wakanyi Kibe v Telkom Kenya Limited
    [2014] eKLR
  • Mbuthia Macharia v Annah Mutua Ndwiga & Another
    [2017] eKLR
  • Anthony Mkala Chitavi v. Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Kenfreight (EA) Ltd v Benson K. Nguti
    [2016] eKLR
  • Charles Musungu Odana v Kenya Ports Authority
    [2019] eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act, 2007 (Sections 35(6), 41, 43, 45, 47(5) and 10(6))

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, "Onyango v Kibos Sugar & Allied Industries Ltd (Cause 340 of 2017) [2023] KEELRC 523 (KLR)", Case Analysis (2023). Cause No 340 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/523/eng@2023-03-02

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