Odhiambo v Siri Gurdwara Ramgarhia Railway (Cause 1043 of 2018) [2023] KEELRC 2587 (KLR)
The bottom line
#A Kenyan court ruled an employer unfairly fired a long-serving worker, awarding him compensation because it proved neither desertion nor a fair dismissal process.
What this practically means
#Executive summary
#Key legal issues
#Desertion vs unfair termination
The court found the Claimant was terminated, not a deserter; the Respondent did not plead desertion and adduced no evidence of efforts to contact the Claimant.
The Respondent did not plead desertion in its response; RWI's oral assertion that the Claimant absconded was unsupported. There was no notice to show cause, no invitation to a hearing, and no minutes of any committee. Following the jurisprudence on desertion, the Respondent failed to demonstrate efforts to contact the employee, and the termination letter dated 1st February 2018 was uncontested.
Substantive justification for termination
The Respondent failed to prove a valid and fair reason for termination.
The allegations of price exaggeration and malpractice (Vegetable Account) were vague, and the Respondent's witness admitted having no evidence of the investigation or of the exaggeration of prices. The termination letter, though informal, was not disowned by the Respondent. The reasons pleaded lacked specificity and the Respondent's witnesses were silent on the alleged malpractices.
Procedural fairness under Section 41
Termination was procedurally unfair; the Respondent did not issue a notice to show cause or invite the Claimant to a hearing.
Section 41 of the Employment Act is mandatory, as held in Pius Machafu Isindu v Lavington Security Guards Ltd. The Respondent's claim that the Claimant refused to attend a hearing was unsupported by any letter of invitation, agenda or minutes. An invitation would have informed the Claimant of his right to be accompanied by a fellow employee.
Overtime claim
Claim dismissed for failure of proof.
RWI, the security guard, contradicted the Claimant's reporting and exit times. The Claimant admitted on re-examination that he was paid overtime for Saturdays only, yet claimed 30 days a month despite having Tuesday off and working half-day on Sunday. Under the burden-of-proof principle, he who alleges must prove; no records supported the claim.
Counter-claim for Kshs.2,345,880.00
Counter-claim dismissed as unproven.
The Respondent adduced no evidence of when the money came into the Claimant's possession, whether it was demanded, or how the sum was computed. RWI's statement made no reference to the Claimant receiving monies. The Respondent was not engaged in commercial activity where money changed hands, rendering the claim an afterthought.
Legal principles established
#- An employer relying on desertion must demonstrate the efforts made to contact the employee before terminating employment.
- Termination must rest on both substantive justification and fair procedure under Sections 45(2) and 41 of the Employment Act.
Court orders
#- 1.Declaration that termination of the Claimant's employment by the Respondent was unfair.
- 2.One month's salary in lieu of notice Kshs.13,861.00.
- 3.Equivalent of 10 months' salary, Kshs.138,610.00 (total Kshs.152,471.00).
- 4.Costs of this suit with interest at court rates from date of judgment till payment in full.
- 5.Certificate of service.
- 6.Counter-claim dismissed.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo v Siri Gurdwara Ramgarhia Railway (Cause 1043 of 2018) [2023] KEELRC 2587 (KLR)", Case Analysis (2023). Cause No 1043 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2587/eng@2023-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.