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ELRCPartially AllowedMemorandum of Claim dated November 19, 2018· [2023] KEELRC 1643 (KLR)

Okoth v Jamii Telecommunication Limited (Cause 1556 of 2018) [2023] KEELRC 1643 (KLR)

Employment and Labour Relations Court
10 July 2023
JGJacob Gakeri
3,492 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employer unfairly dismissed its Transport Manager because it proved no valid reason and gave her only one day to respond.

What this practically means

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Executive summary

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The Claimant, employed as a Transport Manager from September 2012 and confirmed on permanent and pensionable terms in January 2017, sued for unfair termination following her summary dismissal on April 5, 2018 after a notice to show cause issued the previous day. She sought one month's notice pay, twelve months' compensation and costs. The respondent maintained the dismissal was substantively and procedurally fair, alleging wilful neglect of duties, and that all dues were paid. The court framed two issues: whether the termination was unfair and whether the reliefs were payable. On substance, the dismissal letter merely reproduced Section 44(4)(c) of the Employment Act without particulars, no investigation report, minutes, witness statements or documents proved the five charges, and the haste of the process suggested the decision was pre-determined. On procedure, one day to respond to the notice was insufficient; no minutes were filed, no warning issued, and the contractual disciplinary procedure in Clause 12 was breached. The court found both substantive and procedural unfairness. It awarded one month's salary in lieu of notice, but only five months' compensation under Section 49(1)(c) instead of the twelve sought, considering the roughly six-and-a-half years of service, the claimant's failure to appeal and her limited contribution to the termination, together with costs and interest at court rates from the date of judgment.

Key legal issues

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01

Substantive justification for termination

Holding

Respondent failed to prove a valid and fair reason; the summary dismissal letter reproduced Section 44(4)(c) without particulars, and no evidence, minutes or investigation report established the charges

Reasoning

The show cause letter contained five allegations but the dismissal letter merely reproduced Section 44(4)(c) without reference to charges proved. No investigation report, witness statements or minutes were produced. The haste of the process suggested a decision had been pre-made. Section 43 places the burden of proving reasons on the employer, failing which termination is unfair under Section 45.

p. 6
02

Procedural fairness under Section 41

Holding

Termination was procedurally flawed: one day to respond was inadequate, no minutes filed, no warning issued contrary to contract Clause 12

Reasoning

The claimant received the show cause letter at 3.50 pm for a hearing at 4.15 pm the same day. Fair disciplinary hearings require sufficient preparation time, understanding of charges and right to documentation. Minutes were not filed and RWI confirmed no warning was served, breaching both the Employment Act and the contractual disciplinary procedure in Clause 12.

p. 7
03

Reliefs - notice pay and compensation quantum

Holding

One month's notice pay awarded as no evidence of payment; compensation of 5 months' salary under Section 49(1)(c) rather than the full 12 months claimed

Reasoning

The dismissal letter made no reference to the contractual one month's notice and no evidence showed payment in lieu. On quantum, the court considered about 6 years 7 months of service, absence of appeal against the disciplinary decision, and the claimant's limited contribution to the termination, holding five months' salary fair.

p. 8

Legal principles established

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  • Termination must be both substantively justified and procedurally fair to pass the fairness test
  • Employer bears the burden of proving the reasons for termination, failing which the termination is unfair
  • One day's notice to respond to disciplinary charges is insufficient time for a fair hearing

Court orders

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  1. 1.One (1) month's salary in lieu of notice
  2. 2.Equivalent of 5 month's salary as compensation
  3. 3.Costs of this suit
  4. 4.Interest at court rates from the date hereof till payment in full

Authorities

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Legislation

  • Employment ActSections 41, 43, 44(4)(c), 45(2), 47(5), 49(1)(c)
  • Labour Relations Act
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (8)

  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Kenfreight (EA) Limited v Benson K. Nguti
    (2016) eKLR
  • Mary Chamweno Kiptui v Kenya Pipeline Company Limited
    (2014) eKLR
  • Abisalom Ajusa Magomere v Kenya Nut Company Limited
    (2014) eKLR
  • Pius Machafu Isindu v Lavington Security Guards Ltd
    (2017) eKLR
  • Postal Corporation of Kenya v Andrew K Tanui
    (2019) eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Limited
    [2013] e-KLR
  • David Wanjau Muhoro v Ol-Pejeta Ranching Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 over unfair termination claims

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, "Okoth v Jamii Telecommunication Limited (Cause 1556 of 2018) [2023] KEELRC 1643 (KLR)", Case Analysis (2023). Memorandum of Claim dated November 19, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1643/eng@2023-07-10

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