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ELRCPartially AllowedMemorandum of Claim dated 22nd July 2017 (ELRC)· [2023] KEELRC 2253 (KLR)

Odhiambo v Nyota Clothing Limited (Employment and Labour Relations Cause 1441 of 2017) [2023] KEELRC 2253 (KLR)

Employment and Labour Relations Court
18 September 2023
6,023 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a worker's dismissal unfair because the employer skipped the mandatory hearing and couldn't prove he absconded, awarding him compensation.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from late 2016 until his summary dismissal on 8th June 2017, sued claiming unfair and unlawful termination, a certificate of service, underpayment, notice pay, untaken leave, a Kshs. 5,000 salary deduction, unpaid wages and general damages. The Respondent contended he was a general labourer paid above the minimum wage who absconded duty, justifying summary dismissal. The court distilled three issues: the Claimant's job classification, the fairness of the termination, and entitlement to reliefs. On classification, applying Justice Rika's reasoning in Caleb Ouya Opule, the court held that an employer's label does not bind the court; the Respondent, having failed to issue a written contract as sections 9 and 10 of the Employment Act require, bore the burden of proving classification and failed. The Claimant was held to be a storekeeper. On fairness, the court found all three procedural components of section 41 (notification, hearing, consideration) absent, rendering the dismissal procedurally unfair. On substance, the ground of absconding was vague and undated, and the court accepted the Claimant's medical evidence, finding his absences were due to illness with the Respondent's knowledge and consent; the dismissal was therefore without substantive justification. On reliefs, the court awarded refund of the Kshs. 5,000 deduction (later reflected in the award), one month's notice pay, prorated leave for 8.25 days, Kshs. 13,104 underpayment against the statutory minimum wage for storekeepers, three months' gross salary (Kshs. 50,616) as compensation under section 49(1)(c), a certificate of service within 30 days, interest at court rates, and costs. Claims for Kshs. 3,500 unpaid wages and general damages were not granted. Judgment was entered for the Claimant totalling Kshs. 68,359.

Key legal issues

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01

Job classification where no written contract exists

Holding

Claimant was a storekeeper, not a general labourer; employer bore the burden and failed to discharge it

Reasoning

Sections 9 and 10 of the Employment Act require written contracts stating occupation; the employer admitted none was issued, so it bore the burden of proving classification. RW1's assertion that a storekeeper and general labourer were the same was no rebuttal. The Claimant performed marketing duties requiring travel, inconsistent with unskilled 'Mtu wa Mkono' work. His consistent evidence established employment as storekeeper.

p. 8
02

Procedural fairness of summary dismissal

Holding

Dismissal was procedurally unfair; the notification, hearing and consideration components of section 41 were all absent

Reasoning

Section 41 imposes a mandatory procedure: notification of grounds, an opportunity to be heard with a companion of choice, and consideration of representations. The court found all components absent, and the Respondent's witnesses' evidence amounted to explicit admission that the statutory procedure was not followed before the summary dismissal.

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Substantive justification for dismissal

Holding

The reasons (absconding and refusing instructions) were not valid; absences were due to illness with the Respondent's knowledge and consent

Reasoning

Under section 43 the employer bears the burden of proving the reason for termination. The termination letter and warning letters were vague on dates, pleadings never specified them, and RW1 admitted permitting the Claimant to seek treatment. The Respondent never verified its doubts about the medical documents despite having them since 2017, so the reasons failed.

p. 10
04

Reliefs

Holding

Claimant awarded notice pay, prorated leave, underpayment for 7 months, 3 months' compensation for unfair termination, certificate of service, interest and costs

Reasoning

Having found unfair termination, the court exercised discretion under section 49(1)(c) to award three months' gross salary considering the dismissal's manner, the short service period and the Claimant's non-contribution. Minimum wage for storekeepers under the 2017 Wages Order applied, entitling him to Kshs. 1,872 monthly underpayment for seven months.

p. 11

Legal principles established

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  • Where job classification is contested and no written contract issued, the court is not bound by the employer's label but must examine actual duties
  • Deduction of an employee's salary as a disciplinary measure is valid only if authorised by the contract, HR manual, or employee consent
  • Fair termination requires both substantive justification and procedural fairness

Court orders

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  1. 1.A declaration that the Claimant's termination was unfair and unlawful
  2. 2.A declaration that the Claimant is entitled to a certificate of service, to be issued within 30 days of the judgment
  3. 3.Kshs. 4,639.8 for 8.25 untaken leave days
  4. 4.Kshs. 13,104 salary underpayment
  5. 5.Kshs. 50,616 compensation for unfair termination (total Kshs. 68,359)
  6. 6.Interest on the monetary award at court rates from the date of judgment until payment in full
  7. 7.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 45(2)
  • Employment ActSection 43
  • Employment ActSection 35 as read with section 36
  • Employment ActSection 44(1) and 44(4)(a) as read with (c)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 51
  • Employment ActSections 9 and 10
  • Employment ActSection 28
  • Employment ActSection 30
  • Labour Institutions ActSection 48
  • Regulation of Wages (General) (Amendment) Order 2017Minimum wage for storekeepers
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (6)

  • Postal Corporation of Kenya vs Andrew K. Tanui
    [2019] eKLR
  • Caleb Ouya Opule vs Bhupendra R. Bid & Anor
    [2014] eKLR
  • Banking, Insurance & Finance Union (Kenya) vs Barclays Bank of Kenya Limited
    [2014] eKLR
  • Kenya Shoe and Leather Workers Union vs Fast Track Management Consultants Limited
    [2015] eKLR
  • Walter Ogal Anuro –v- Teachers Service Commission
    (2013) eKLR
  • Ann Njoroge vs Topez Petroleum Limited
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "Odhiambo v Nyota Clothing Limited (Employment and Labour Relations Cause 1441 of 2017) [2023] KEELRC 2253 (KLR)", Case Analysis (2023). Memorandum of Claim dated 22nd July 2017 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2253/eng@2023-09-18

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