Okanga v Mombasa Island Cargo Terminal (Cause 10 of 2019) [2023] KEELRC 1117 (KLR)
The bottom line
#A Mombasa court awarded an employee over Ksh. 1 million after his employer fired him without proper notice, evidence, or a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the termination
The procedure adopted was unfair: the invitation letter did not inform the Claimant of his section 41 rights, did not request a written response, gave only one day's notice, and combined the charge sheet with the hearing notice
Section 41 of the Employment Act mandates that an employer explain reasons and hear representations before termination for misconduct. The 9 January 2019 letter merely invited the Claimant to a hearing set for 11 January without particulars of the alleged absence dates or a request for a written response. Combining an accusation memorandum with a hearing invitation denied the Claimant a fair opportunity to be heard, and one day's notice was inadequate.
Validity of the reasons for termination
The Respondent failed to prove the alleged absenteeism; no attendance registers or clocking-in records were produced, so the termination was substantively unfair
Under section 43 the employer must prove the reasons for termination, and under section 47(5) bears the burden of justifying the grounds. The Respondent relied only on general allegations in the invitation letter; RW-2 conceded there was no other evidence of the absence dates and no prior warnings were filed. The Claimant's medical evidence of hospitalisation was unrebutted.
Entitlement to reliefs
Nine months' salary compensation, one month's pay in lieu of notice, and Ksh. 123,662 in unpaid leave days awarded; service pay declined
Having found the termination procedurally and substantively unfair, the court exercised discretion under section 49 to award nine months' salary. Payment in lieu of notice was unrebutted and grounded in section 35(1)(c) and the contract. On leave, the court accepted RW-1's unrebutted evidence of leave taken and paid, computing the shortfall over 84 days' entitlement. Service pay failed because the Claimant was in a pension scheme.
Legal principles established
#- For a termination to pass the fairness test there must be both substantive justification and procedural fairness
- Combining a show-cause letter with a hearing invitation is unfair; each should be given separately with adequate notice, ideally between three and seven clear days
- The employer bears the burden of proving the reasons for termination, failing which the termination is unfair
Court orders
#- 1.Compensation for unfair termination of employment of Ksh. 864,000 (nine months' salary)
- 2.Payment in lieu of notice of Ksh. 96,000
- 3.Payment for unpaid leave days of Ksh. 123,662
- 4.Total award of Ksh. 1,083,662 subject to statutory deductions pursuant to section 49(2) of the Employment Act
- 5.Respondent to issue the Claimant with a Certificate of Service pursuant to section 51 of the Employment Act within thirty days of judgment
- 6.Claimant awarded costs of the suit and interest at Court rates
- Jurisdiction invoked
- Article 41(1) of the Constitution of Kenya and the Employment Act (first-instance employment claim under the Employment and Labour Relations Court's jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okanga v Mombasa Island Cargo Terminal (Cause 10 of 2019) [2023] KEELRC 1117 (KLR)", Case Analysis (2023). Memorandum of Claim dated 7/3/2019 (ELRC, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1117/eng@2023-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.