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ELRCPartially AllowedCause No. 1744 of 2014· [2023] KEELRC 1556 (KLR)

Ong’ondi v Independent Electoral and Boundaries Commission (Cause 1744 of 2014) [2023] KEELRC 1556 (KLR)

Employment and Labour Relations Court
21 June 2023
4,382 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's employment court ordered the IEBC to pay a former director Sh11.1 million because it fired him over poor performance without proving it or holding a disciplinary hearing.

What this practically means

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Executive summary

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The Claimant, formerly Director, Information, Communication and Technology at the Independent Electoral and Boundaries Commission, challenged the termination of his employment effected by a letter dated 2nd September 2014, after a show cause letter of 14th August 2014 alleging failure to provide ICT leadership in the 2013 General Elections. The court framed three issues: validity of the reasons for termination, procedural fairness, and reliefs. The Respondent closed its case without calling any witness. The court found that the Claimant's unrebutted evidence of excellent appraisals, a salary increment, and testimony of a competent ICT expert displaced the allegation of poor performance, and that under sections 43 and 45(2) of the Employment Act the employer bore the burden of proving valid and fair reasons, which it failed to discharge. Although the Claimant was given a show cause letter and responded in detail, no disciplinary hearing was convened; section 41 being mandatory, the termination was procedurally unfair. On remedies, reinstatement and re-engagement were refused as overtaken by events, and general damages for breach and rights violations were not awarded for want of proof. The court awarded 10 months' salary as compensation (Kshs. 7,767,940), one month's salary in lieu of notice (Kshs. 776,794), withheld August 2014 salary (Kshs. 776,794), and accumulated leave pay (Kshs. 1,825,245), totaling Kshs. 11,146,773, with interest and costs to the Claimant.

Key legal issues

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01

Whether the reasons for termination were valid and justified

Holding

The Respondent failed to prove the validity of the reasons for termination, so the termination was unjustified

Reasoning

The termination was premised on alleged poor performance and incompetence. The Claimant tendered unrebutted evidence of excellent appraisals, a 10% salary increment and testimony from CW2 as to his competence. The Respondent closed its case without calling any witness, thus failing to discharge the burden under sections 43 and 45(2) of the Employment Act.

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02

Whether fair procedure was followed in the termination

Holding

The termination was procedurally unfair because no disciplinary hearing was conducted as required by section 41 of the Employment Act

Reasoning

Although the Claimant was issued a show cause letter to which he responded in detail, no disciplinary hearing was ever convened to verify the reasons for termination. Section 41 is couched in mandatory terms requiring notification and hearing before termination on grounds of misconduct or poor performance.

p. 8
03

Whether the Claimant was entitled to the reliefs sought

Holding

Compensation, notice pay, withheld August 2014 salary and leave pay were awarded; reinstatement, general damages and related prayers were refused

Reasoning

Reinstatement was overtaken by events since more than three years had lapsed and the Claimant had moved on. General damages were not proved. The court applied section 49 of the Employment Act to award 10 months' salary as compensation, plus notice pay, unpaid August 2014 salary and accumulated leave, since the Respondent, custodian of employment records, adduced no rebutting evidence.

p. 9

Legal principles established

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  • An employer bears the burden of proving valid and fair reasons for termination and compliance with fair procedure under sections 43, 45 and 41 of the Employment Act
  • Where poor performance is the reason for termination, the employer must demonstrate how poor performance was measured and addressed
  • Termination without a disciplinary hearing contravenes the mandatory requirements of section 41 of the Employment Act and is unfair

Court orders

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  1. 1.Judgment entered in favour of the Claimant against the Respondent in the sum of Kshs. 11,146,773.00
  2. 2.Compensation for unfair termination of 10 months' salary in the sum of Kshs. 7,767,940
  3. 3.Payment of one month's salary in lieu of notice at Kshs. 776,794
  4. 4.Payment of withheld salary and allowances for August 2014 at Kshs. 776,794
  5. 5.Payment in lieu of accumulated leave for 2011-2013 and 20 days for 2014 totaling Kshs. 1,825,245
  6. 6.Interest on the notice pay, withheld salary and leave pay from the date of filing suit, and interest on the compensation award from the date of judgment
  7. 7.Costs of the suit awarded to the Claimant

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 35, 41, 47, 48, 249
  • Employment Act, 2007Sections 8, 18(4), 26, 41, 42(1), 43, 44(3), 44(4), 45, 47(5), 49(1), 49(4)
  • Independent Electoral and Boundaries Commission Act, 2011Section 26

Cases cited (4)

  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Kenya Union of Commercial Food and Allied Workers vs Meru North Farmers Sacco Limited
    (2014) eKLR
  • Jane Samba Mukala Vs. Oltukai Lodge Limited
    [2010] KLR 225
  • Abdi Halake Garamboda v Fidelity Security Services Limited
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Constitution of Kenya, 2010

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, "Ong’ondi v Independent Electoral and Boundaries Commission (Cause 1744 of 2014) [2023] KEELRC 1556 (KLR)", Case Analysis (2023). Cause No. 1744 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1556/eng@2023-06-21

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