Ngolo v Western Seed Company Ltd (Cause E008 of 2023) [2023] KEELRC 2348 (KLR)
The bottom line
#A Kenyan court ruled that taking away an employee's duties and company property amounts to dismissal, and employers must raise accusations with workers before firing them.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was dismissed or deserted duty
The Claimant was dismissed on the day he was directed to hand over company property and his subordinates were redirected to report elsewhere
The Respondent directed the Claimant to return all company property and simultaneously instructed his subordinates to report to another manager. The court held this conduct constituted dismissal, whether or not the Claimant was expressly barred from the premises. The desertion allegation was incompatible with the Respondent's late-raised complaints and the meeting of 16th December 2019 was unproved.
Whether the termination was unfair
Yes - the reasons were not raised with the Claimant and he was given no opportunity to defend himself
Under sections 41 and 43 of the Employment Act, the employer must prove valid reasons and subject them to the employee before termination. The Respondent's claims of dishonesty about the accident, non-existent injuries and incompetence surfaced only in submissions and were never put to the Claimant. Compensation was then assessed at six months under section 49(4).
Entitlement to remedies
November salary for 19 days, one month's notice pay, six months' compensation and unpaid gratuity awarded; other heads declined
The employer produced no evidence of payment of salary or gratuity, contrary to section 10(7) which places the burden of proving contractual terms and payments on the employer. Severance pay was unavailable absent redundancy; futuristic claims for remaining years of service, COP, car-hire fees and the guaranteed loan failed for want of legal or contractual foundation and proof.
Legal principles established
#- Reasons for termination must be proved and raised with the employee who must be given an opportunity to defend himself (ss. 41 and 43 Employment Act)
- Allegations not raised with the employee before termination cannot justify the termination
- Burden on employer to prove payment of salary under s.10(7) Employment Act
Court orders
#- 1.Salary for 19 days worked in November 2019 – Ksh. 34,834
- 2.Pay in lieu of notice (one month) – Ksh. 55,000
- 3.Compensation for unfair termination (6 months' salary) – Ksh. 330,000
- 4.Gratuity not paid for any year worked
- 5.Respondent to pay Claimant's costs
- 6.Interest at court rates from date of judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance memorandum of claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngolo v Western Seed Company Ltd (Cause E008 of 2023) [2023] KEELRC 2348 (KLR)", Case Analysis (2023). Cause No E008 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2348/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.