Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMemorandum of Claim dated 30th May 2017· [2023] KEELRC 1032 (KLR)

Omengo v Ultimate Engineering Limited (Cause 1438 of 2017) [2023] KEELRC 1032 (KLR)

Employment and Labour Relations Court
27 April 2023
OKOCHARO KEBIRA
3,910 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that firing an employee without reasons or a hearing is unfair, awarding the worker over Ksh.1.3 million, including salary for the suspension period.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent from 17th April 2004 and confirmed on permanent and pensionable terms in February 2011, was suspended on 10th March 2013 pending a criminal case alleging conspiracy to sell waste materials from a construction site. He was discharged under section 87(a) of the Criminal Procedure Code on 21st July 2015. Despite availing a certified copy of the discharge order, the Respondent declined to reinstate him, instead demanding he withdraw a demand letter, and verbally dismissed him on 10th February 2016 without notice or reasons. The Respondent failed to enter appearance or file a response, and the claim proceeded undefended from 7th March 2019. The court found that the employer bore the legal burden of justifying the termination under sections 41, 43 and 45(2) of the Employment Act, and having adduced no evidence, failed to discharge it; the termination was both procedurally and substantively unfair. The court entered judgment for the Claimant: Ksh.30,000 in lieu of notice, Ksh.99,000 for untaken leave (limited to three years under section 90), Ksh.9,500 emergency kitty, Ksh.1,050,000 salary for the 35-month suspension (holding an employer must pay salary during suspension absent a contractual term), and Ksh.210,000 being seven months' gross salary as compensation under section 49. The court also ordered facilitation of release of CFC Life Pension Funds and issuance of a Certificate of Service within 30 days. Claims for house allowance, severance pay, loss of earnings, and the Family Bank loan were declined. Costs were awarded to the Claimant with interest at court rates from the date of judgment.

Key legal issues

#
01

Whether the termination was procedurally fair

Holding

The dismissal was procedurally unfair by operation of section 45(2) of the Employment Act for breach of section 41

Reasoning

The burden of proving fair procedure rests on the employer. The Respondent, having failed to enter appearance or adduce evidence, discharged no burden. The Claimant's unchallenged evidence was that he was verbally dismissed without reasons or a hearing. Section 41 is mandatory; non-compliance renders the termination unfair under section 45(2).

p. 4
02

Whether the termination was substantively justified

Holding

The Respondent failed to prove valid and fair reasons under sections 43 and 45(2); the termination was substantively unfair

Reasoning

Section 43 places the legal burden of proving reasons for termination on the employer. A legal burden is dischargeable only by adduction of sufficient evidence; the Respondent did not testify, so it failed to discharge its burden under section 43 and section 45(2), rendering the termination unfair by operation of law.

p. 4
03

Whether an employee is entitled to salary during suspension

Holding

Yes, absent a contractual term allowing withholding of salary during suspension

Reasoning

Suspension neither terminates the contract nor dismisses the employee; it merely suspends contractual obligations pending investigations or determination of a criminal charge. In the absence of a contractual term permitting non-payment, the employer remains bound to pay monthly salary throughout the suspension period.

p. 7
04

Entitlement to compensation for unfair termination

Holding

Seven months' gross salary (Ksh.210,000) awarded under section 49 of the Employment Act

Reasoning

The discretionary award under section 49 depends on the circumstances of each case. The court considered the unlawful suspension and subsequent termination, the length of the Claimant's service, and the fact that he secured alternative employment three months after termination, settling on seven months' gross salary.

p. 7
05

Whether unpaid leave and house allowance claims were payable

Holding

Leave pay awarded limited to three years by section 90; house allowance claim declined as time-barred

Reasoning

Section 28 entitles employees to leave and section 74 obliges employers to keep leave records. The Respondent led no evidence of leave taken, but the court applied section 90's three-year limitation, awarding Ksh.99,000. The pleaded house allowance periods fell outside the limitation period, so no award was made despite non-payment being established.

p. 5

Legal principles established

#
  • Fairness in termination requires both substantive justification and procedural fairness; absence of either renders the termination unfair
  • The legal burden of proving fair procedure, reasons, and valid and fair reasons for termination rests on the employer
  • Absent a contractual term permitting non-payment, an employer remains under duty to pay an employee's salary during suspension

Court orders

#
  1. 1.Declaration that the termination of the Claimant's employment was both procedurally and substantively unfair
  2. 2.Salary in lieu of notice of Ksh.30,000
  3. 3.Pay for untaken leave days of Ksh.99,000
  4. 4.Emergency Kitty of Ksh.9,500
  5. 5.Salary for the 35 months of suspension of Ksh.1,050,000
  6. 6.Seven months' gross salary as compensation for unfair termination, Ksh.210,000
  7. 7.Order for the facilitation of release of CFC Life Pension Funds to the Claimant
  8. 8.Respondent to issue Certificate of Service within 30 days of the judgment
  9. 9.Costs of the suit to the Claimant
  10. 10.Interest at court rates from the date of judgment until full payment

Authorities

#

Legislation

  • Employment Act 2007sections 28, 31, 35, 40(1)(g), 41, 43, 45(2), 47(5), 49, 51, 74, 90
  • Criminal Procedure Codesection 87(a)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of Kenya 2010Articles 159(2)(d), 48
  • Civil Procedure Act (Chapter 21)Section 1B

Cases cited (3)

  • John Hawala Ogola v St. Marys Hospital
    [2020] eKLR
  • Mary Chemwono Kiptui v The Kenya Pipeline Company Limited
    (2014) eKLR
  • Duru v. Skye Bank Plc
    (2015) NLLR at Page 731
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (implied); claim instituted by Memorandum of Claim under the Employment Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Omengo v Ultimate Engineering Limited (Cause 1438 of 2017) [2023] KEELRC 1032 (KLR)", Case Analysis (2023). Memorandum of Claim dated 30th May 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1032/eng@2023-04-27

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