Okello & another v Kenya Education Management Institute (Employment and Labour Relations Cause 846 & 845 of 2012 (Consolidated)) [2023] KEELRC 2079 (KLR)
The bottom line
#The Employment Court upheld two dismissals as lawful and fair, but ordered the employer to pay notice and untaken leave dues.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was for a valid reason
Yes - the respondent proved on a balance of probabilities misconduct including attempted double payment, unauthorized alteration of payment voucher No. 00252, and wrongful processing of a Kshs.90,000 payment.
The Court evaluated the evidence of both claimants against the internal audit and investigation reports and the testimony of R.W.1, R.W.2 and R.W.3. It found the claimants implicated in preparing and altering payment vouchers without authority, leading to overpayments to Milele Beach Hotel and KRA, and that C.W.2 wrongfully processed payment of a training fees cheque towards rent arrears.
Whether a fair procedure was followed
Yes - claimants were given opportunity to respond in writing and to appear before the Human Resource Committee before termination.
The Court found that the claimants responded to the charges in writing by letters dated 24/6/2011 and appeared before the Human Resource Committee on 24/6/2011 and 1/7/2011 before the Council decided to terminate. The interdiction pending investigation was a fair step, following Peter Gaitho Ng'ang'a v Board of Management of Banita Secondary School.
Whether claimants are entitled to the reliefs sought
Only partially - one month's salary in lieu of notice and pay in lieu of untaken leave are awarded; the rest of the reliefs are refused.
Since the termination was lawful and fair, no compensation, salary to retirement, or service/severance pay is payable. The claimants were pensionable and registered with NSSF. However, the letters of termination offered one month's notice pay, and the respondent did not demonstrate payment in lieu of untaken leave days, which the Court awarded as claimed.
Legal principles established
#- The employer bears the burden under Section 43(1) and (2) of the Employment Act to prove on a balance of probabilities that termination was for a valid reason.
- A fair termination requires both substantive justification and procedural fairness.
- An adjudicating authority must scrutinize the procedure adopted by the employer in reaching a dismissal decision.
Court orders
#- 1.Judgment entered for Barrack Okello: Kshs.26,774 in lieu of one month notice and Kshs.42,945 in lieu of unpaid leave days not taken.
- 2.Judgment entered for Bernard Mbulo: Kshs.32,294 in lieu of one month notice and Kshs.42,945 in lieu of 45 leave days not taken in 2009 and 2010.
- 3.Interest at Court rates from date of termination till payment in full.
- 4.The respondent to pay half the Costs of the suit.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007: Sections 36, 41, 43, 45, 51)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okello & another v Kenya Education Management Institute (Employment and Labour Relations Cause 846 & 845 of 2012 (Consolidated)) [2023] KEELRC 2079 (KLR)", Case Analysis (2023). ELRC Cause No. 846 of 2012 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2079/eng@2023-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.