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ELRCDismissedAppeal No E014 of 2023· [2023] KEELRC 2352 (KLR)

Omuga v Judicial Service Commission (Appeal E014 of 2023) [2023] KEELRC 2352 (KLR)

Employment and Labour Relations Court
5 October 2023
CBC. N. Baari
2,101 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment appeal failed because the employee couldn't prove unfair termination — employers who document disciplinary steps are protected.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisumu against a judgment of the Trial Court delivered on 6th February 2023, which dismissed the Appellant's claim for unfair termination with costs. The appeal raised five grounds, summarised by the court into one: that the Trial Magistrate erred in holding that the Appellant had not proved his case on a balance of probabilities. The Appellant, a former employee of the Respondent dismissed by letter dated 8th January 2020 following disciplinary proceedings over absconding duty, contended that Sections 41 and 45 of the Employment Act required a valid reason and a fair hearing, and that no warning letter was issued and he was not informed of his right to representation. The Respondent maintained that the Appellant failed to prove his sickness or the authenticity of his sick-off notes, and that the Trial Court correctly found both substantive and procedural fairness. The court, per C. N. Baari, J, applied the first appellate duty of re-evaluating the evidence and held that the Respondent issued a show cause letter, invited the Appellant to a disciplinary hearing, and afforded him an appearance before the disciplinary advisory committee, satisfying Section 41. On the burden of proof under Section 47(5), the court found the Appellant failed to prove he was unwell, the hospital confirming only three days' sick-off against his claim of 30 days. The appeal was dismissed with no orders on costs.

Key legal issues

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01

Whether the Appellant proved unfair termination on a balance of probabilities

Holding

The Appellant did not discharge the burden under Section 47(5) of the Employment Act of proving that his termination was unfair

Reasoning

Section 47(5) places the burden of proving unfair termination on the employee. The Appellant's sole defence to the charge of absconding duty was illness, evidenced only by sick-off notes from Hema Hospital. The Respondent adduced evidence that the hospital confirmed the Appellant was given only three days' sick-off, not 30 days as claimed. The Appellant thus failed to prove he was unwell or that the termination was unfair.

p. 5
02

Whether the Respondent followed a fair procedure under Section 41 of the Employment Act

Holding

The Respondent adhered to both the law and its own disciplinary manuals on procedural fairness

Reasoning

Relying on Hosea Akunga Ombwori v Bidco Oil Refineries and Philip Kimosop v Kingdom Bank, the court held that issuing a show cause letter outlining the allegations, receiving the Appellant's response, inviting him to a disciplinary hearing, and confirming his appearance before the disciplinary advisory committee satisfied the requirements of Section 41, entitling him to respond and be heard.

p. 4

Legal principles established

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  • The burden of proving that an unfair termination or wrongful dismissal has occurred rests with the employee
  • On a first appeal, the court's primary role is to re-evaluate, re-assess and re-analyse the evidence on the record

Court orders

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  1. 1.The appeal fails and is dismissed with no orders on costs

Authorities

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Legislation

  • Employment ActSections 41, 45
  • Employment ActSection 47(5)
  • Constitution of KenyaArticles 41, 47

Cases cited (9)

  • Kenfreight (EA) Limited v Benson K. Nguti
    [2016] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2013] eKLR
  • Kenya Revenue Authority vs Reuwel Waithaka Gitahi & 2 others
    (2019) eKLR
  • William Kabogo Gitau vs. George Thuo & 2 Others
    (2010)
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Hosea Akunga Ombwori v Bidco Oil Refineries Limited
    (2017) eKLR
  • Philip Kimosop v Kingdom Bank Limited
    (2022) eKLR
  • Reuben Ikatwa & 17 others v Commanding Officer British Army Training Unit Kenya & another
    Nyeri Civil Appeal No.97 of 2016
On appeal from
Trial Court (Magistrates' Court)
Jurisdiction invoked
First appellate jurisdiction over an appeal from the Trial Court (Employment and Labour Relations Court Act); no specific provision cited in the judgment

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, "Omuga v Judicial Service Commission (Appeal E014 of 2023) [2023] KEELRC 2352 (KLR)", Case Analysis (2023). Appeal No E014 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2352/eng@2023-10-05

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