Odhiambo v Nyota Clothing Limited (Employment and Labour Relations Cause 1441 of 2017) [2023] KEELRC 2253 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Job classification where no written contract exists
Claimant was a storekeeper, not a general labourer; employer bore the burden and failed to discharge it
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.
Procedural fairness of summary dismissal
Dismissal was procedurally unfair; the notification, hearing and consideration components of section 41 were all absent
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.
Substantive justification for dismissal
The reasons (absconding and refusing instructions) were not valid; absences were due to illness with the Respondent's knowledge and consent
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.
Reliefs
Claimant awarded notice pay, prorated leave, underpayment for 7 months, 3 months' compensation for unfair termination, certificate of service, interest and costs
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.
Legal principles established
#- 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
#- 1.A declaration that the Claimant's termination was unfair and unlawful
- 2.A declaration that the Claimant is entitled to a certificate of service, to be issued within 30 days of the judgment
- 3.Kshs. 4,639.8 for 8.25 untaken leave days
- 4.Kshs. 13,104 salary underpayment
- 5.Kshs. 50,616 compensation for unfair termination (total Kshs. 68,359)
- 6.Interest on the monetary award at court rates from the date of judgment until payment in full
- 7.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.