Ong’ondi v Independent Electoral and Boundaries Commission (Cause 1744 of 2014) [2023] KEELRC 1556 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the reasons for termination were valid and justified
The Respondent failed to prove the validity of the reasons for termination, so the termination was unjustified
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.
Whether fair procedure was followed in the termination
The termination was procedurally unfair because no disciplinary hearing was conducted as required by section 41 of the Employment Act
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.
Whether the Claimant was entitled to the reliefs sought
Compensation, notice pay, withheld August 2014 salary and leave pay were awarded; reinstatement, general damages and related prayers were refused
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.
Legal principles established
#- 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
#- 1.Judgment entered in favour of the Claimant against the Respondent in the sum of Kshs. 11,146,773.00
- 2.Compensation for unfair termination of 10 months' salary in the sum of Kshs. 7,767,940
- 3.Payment of one month's salary in lieu of notice at Kshs. 776,794
- 4.Payment of withheld salary and allowances for August 2014 at Kshs. 776,794
- 5.Payment in lieu of accumulated leave for 2011-2013 and 20 days for 2014 totaling Kshs. 1,825,245
- 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.Costs of the suit awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.