Oywa v Telecontact Limited (Cause 585 of 2018) [2023] KEELRC 1612 (KLR)
The bottom line
#A Kenyan court awarded a supervisor Kshs 700,000 because his employer fired him for fraud without proving it or following a fair process.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for termination
The respondent failed to prove a valid and fair reason; allegations lacked particulars (identity of applicants, dates) and the fraud was not substantiated
The termination letter and HR questionnaire did not identify the applicants whose biometrics were taken or the dates of the alleged breach. The statement of account of James Wachira Kiranga was not correlated to the claimant's case. Under sections 43(1) and 45(2) of the Employment Act, the employer had to prove the substance of the allegations to the requisite standard, which it failed to do.
Procedural fairness under section 41
The process was procedurally unfair because the claimant was not told the December 14, 2017 meeting was a disciplinary hearing nor of his right to be accompanied, and the allegations were too general to allow a defence
Although the respondent initially issued a HR questionnaire and paid suspension, its communication was 'mysterious' about the disciplinary hearing. The claimant did not know he faced termination and could not prepare psychologically or bring a fellow employee. Vague allegations also undermined his ability to defend himself, rendering the process unfair contrary to section 41.
Quantum of reliefs
Compensatory damages of five months' gross salary awarded; notice pay, severance and anticipatory earnings refused
Having found the termination substantively and procedurally unfair, the court awarded compensatory damages considering the length of employment. Notice pay had been paid; severance applies only to redundancy; and anticipatory earnings to retirement are not payable in law per the Court of Appeal in D K Njagi Marete v Teachers Service Commission.
Legal principles established
#- Failure of an employer to specify the particulars of an allegation against an employee amounts to failure to substantiate the allegation
- An employer must prove valid and fair reasons under sections 43(1) and 45(2) of the Employment Act before termination
- An employee must be notified of the significance of a meeting that turns out to be a disciplinary hearing so he can prepare, and must be told of his right to be accompanied
Court orders
#- 1.A declaration that the claimant's dismissal was unfair and unlawful
- 2.Compensatory damages in the sum of Kshs 700,000.00 being equivalent to five (5) months of his gross salary
- 3.Interest on the compensatory damages at court rates from the date of Judgment until payment in full
- 4.The claimant shall have the costs of the suit
- 5.Certificate of Service to issue within 30 days from the date of Judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oywa v Telecontact Limited (Cause 585 of 2018) [2023] KEELRC 1612 (KLR)", Case Analysis (2023). Memorandum of Claim dated April 12, 2018 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1612/eng@2023-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.