Akoto v Kenindia Assurance Company Limited (Cause E713 of 2020) [2023] KEELRC 1623 (KLR)
The bottom line
#A Kenyan court awarded a HR manager over Kshs. 10 million after finding her firing was unfair and she faced racial harassment at work.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of termination
Termination procedure was unfair: the Claimant was required to respond immediately contrary to the 3-day requirement in the Human Resource Manual, no hearing was held on the allegations, and the termination letter introduced charges not in the show cause letter
The Court relied on Macharia's cross-examination admissions that the Claimant was compelled to respond to the show cause letter the same Friday it issued, that no hearing took place over the weekend, and that the show cause letter did not contain the charges of refusing the apology or insubordination. This fell short of Sections 41 and 45 of the Employment Act and the Respondent's own Manual.
Whether refusal to accept the Managing Director's apology was a valid reason for termination
It was not a valid and fair reason; the Claimant was not obliged to accept the apology
The Court found the Claimant's complaints against the Managing Director were genuine and included grave racial slurs. The Board Executive Committee relied on unrecorded discussions of a purported settlement of 2nd March 2020 and simply adopted the Chief Operating Officer's position, without examining the complaints systematically. Refusal of an apology was not insubordination or unwillingness to work.
Whether the alleged e-mails amounted to insubordination
The e-mails to Kumar, Mohan and Macharia did not meet the threshold of insubordination
Applying Section 44(4)(d) and (e) of the Employment Act and Dede Esi Amanor-Wilks v Action Aid International, the Court found the Claimant's communications, though strong, were not abusive or insulting; she communicated a committee's position, stated factual grievances, and differed in opinion from colleagues, which is not insubordination.
Whether the Claimant irregularly reviewed the former Managing Director's salary
The Claimant did not have authority to review the Managing Director's salary; the Board approved the increment and responsibility lay with the Board and Managing Director, not the Claimant
The evidence showed the Board approved Inderjeet Singh's salary increment and the Respondent itself sought a refund directly from him. The matter was only raised three years later despite annual audits. Macharia conceded under cross-examination that salary increments were approved by the Board and that backdating was normal.
Harassment and discrimination on account of race
The Claimant established harassment and discrimination; the Managing Director's twice-tendered apology was fault-admitting and the Respondent failed to discharge its burden of proof
The Managing Director never denied the complaints, including the racial slur. The Respondent mishandled the complaints by adopting the Grievance Handling Policy instead of the Harassment Policy, and investigated nothing. Under Section 5(7) of the Employment Act, once a prima facie case was shown, the burden shifted to the Respondent, which offered only the apology as explanation.
Appropriate remedies
Reinstatement and injunction refused; 12 months' salary as compensation and Kshs. 3,000,000 general damages awarded; anticipatory benefits declined
The Claimant served 7 years with a clean record, did not contribute to the termination and had not secured alternative employment, meriting the maximum 12 months' compensation. Anticipatory benefits were refused on the authority of Elizabeth Wakanyi Kibe v Telkom Kenya Limited, remedies being proportionate to economic injury.
Legal principles established
#- An employee is not obliged to accept an apology from a senior manager, and refusal to accept an apology is not a fair and valid reason for termination
- Strong but non-abusive communication expressing a committee's position does not amount to insubordination
- An oral apology tendered during consideration of complaints is a fault-admitting apology capable of establishing culpability for harassment and discrimination
- Once an employee demonstrates a prima facie case of discrimination, the burden shifts to the employer to articulate clear, specific and non-discriminatory reasons
Court orders
#- 1.It is declared that the Respondent harassed and discriminated against the Claimant
- 2.It is declared that termination of the Claimant's contract was unfair and unlawful
- 3.The Respondent shall pay the Claimant equivalent of 12 months' salary in compensation for unfair and unlawful termination at Kshs. 7,572,852 and general damages for harassment and discrimination at Kshs. 3,000,000, totalling Kshs. 10,572,852
- 4.Costs to the Claimant
- Jurisdiction invoked
- Sections 41, 43 and 45 of the Employment Act (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Akoto v Kenindia Assurance Company Limited (Cause E713 of 2020) [2023] KEELRC 1623 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1623/eng@2023-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.