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ELRCPartially AllowedAppeal from Kakamega CMELRC No. 151 of 2019 (Memorandum of Appeal dated 8th March 2023)· [2023] KEELRC 2810 (KLR)

Kenya Aids NGOs Consortium (KANCO) v Okumu (Employment and Labour Relations Appeal 6 of 2023) [2023] KEELRC 2810 (KLR)

Employment and Labour Relations Court
9 November 2023
JKJemimah Keli
6,915 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled an NGO's dismissal of an employee on leave was unfair, upholding Sh445,334 in compensation for lack of a hearing.

What this practically means

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Executive summary

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This is a judgment of the Employment and Labour Relations Court at Kakamega (Jemimah Keli, J) delivered on 9th November 2023 in an appeal by Kenya Aids NGOs Consortium (KANCO) against the judgment of Hon. D. Alego (SPM) in Kakamega CMELRC No. 151 of 2019, in which the respondent, Linda Achieng Okumu, a Data Officer summarily dismissed on 20th December 2018 while on annual leave, had succeeded on claims of unfair termination. The court framed two issues: whether the magistrate erred on substantive and procedural fairness, and whether the reliefs awarded were due. Applying sections 41, 43 and 45(2) of the Employment Act and the reasonable employer test, the court held there was no procedural fairness as no show cause letter or hearing preceded the dismissal, and no valid reasons existed since the employer failed to prove the respondent was informed she was required during her approved leave, having been contacted only on official email on the eve of the M&E exercise. The finding of unfair termination was upheld. On reliefs, notice pay of Kshs. 40,000 was upheld; leave pay was substituted at Kshs. 18,667 for 14 untaken days; December salary was substituted at Kshs. 26,667 for 20 days worked; and the 12 months' maximum compensation was set aside as excessive given the less than 10 months remaining on the contract, with 9 months (Kshs. 360,000) awarded instead, all totalling Kshs. 445,334 subject to PAYE. Interest was awarded from 28th March 2022, lower court costs upheld, and each party to bear own costs of the appeal, the appeal having been partially successful.

Key legal issues

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01

Procedural fairness of the summary dismissal

Holding

The dismissal was procedurally unfair as there was no show cause letter, notice or hearing.

Reasoning

The respondent was dismissed on 20th December 2018 while on approved annual leave without a show cause letter or disciplinary hearing. Section 41(2) of the Employment Act mandates that an employer hear and consider representations before summary dismissal. The right to fair hearing is non-derogable under Article 25 of the Constitution, so the dismissal offended the statutory procedure and constitutional right.

p. 7
02

Substantive fairness - validity of reasons for dismissal

Holding

The reasons were not valid and justified; no reasonable employer would have dismissed in the circumstances.

Reasoning

The respondent was on approved leave, had handed over to a colleague, and was only notified of the M&E exercise on the eve of the exercise via official email which she could not access on leave. The employer produced no proof she was informed of the leave form remarks, called on phone, or contacted on personal email. Applying the reasonable employer test, the reasons failed under sections 43 and 45(2).

p. 11
03

Entitlement to reliefs and quantum

Holding

Notice pay upheld; leave pay, December salary and compensation varied; costs and certificate of service upheld.

Reasoning

The court recalculated the untaken leave days (14 days at Kshs. 18,667), awarded 20 days' December salary (Kshs. 26,667) since dismissal was on 20th December 2018, and substituted 12 months' compensation with 9 months (Kshs. 360,000), considering the remaining contract period, service since 2016, and inability to secure other employment.

p. 13

Legal principles established

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  • No employee may be dismissed without being accorded a fair hearing; the procedure in section 41 of the Employment Act is mandatory.
  • An employer recalling an employee on statutory annual leave must use the employee's unofficial/personal contacts, not official email.
  • Where an employee alleges non-payment of salary, the burden of proving payment lies on the employer as custodian of the records.
  • Compensation for unfair termination should not exceed the remaining contract period.

Court orders

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  1. 1.Award on Notice pay for the sum of Kshs. 40,000/-
  2. 2.Award for payment in lieu of 14 untaken leave days for the sum of Kshs. 18,667/-
  3. 3.Award for 20 days worked in December salary for the sum of Kshs. 26,667/-
  4. 4.Compensation for unfair and unlawful termination awarded at the equivalent of 9 months' last gross salary, 9 x Kshs. 40,000, total Kshs. 360,000/-
  5. 5.All awards totalling Kshs. 445,334/- payable subject to PAYE statutory deduction only
  6. 6.Interest at court rates from the date of judgment of the Magistrate's court (28th March 2022) until payment in full
  7. 7.Costs of the suit at the lower court to the Claimant upheld
  8. 8.Each party to bear own costs in this appeal

Authorities

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Legislation

  • Employment ActSection 44(4)
  • Employment ActSection 45(2)
  • Employment ActSection 43
  • Employment ActSection 41
  • Employment ActSection 49
  • Employment ActSection 51
  • Employment ActSection 28(5)
  • Constitution of KenyaArticle 25

Cases cited (8)

  • Selle And Another V Associated Motor Boat Company Ltd & Others
    [1968] EA 123
  • CFC Stanbic Ltd Vs Danson Mwashako Mwakuwona
    (2015) eKLR
  • Walter Ogal Anuro Versus Teachers Service commission
    (2013) eKLR
  • Mary Chemweno Kiptui Vs Kenya Pipeline Company Limited
    (2014) eKLR
  • Pamela Melima Lutta vs Mumias Sugar Company Limited
    (2017) eKLR
  • Felista Achola Ikatwa v Charles Peter Otieno
    (2018) eKLR
  • British Leland UK LTD V Swift
    (1981) I.R.L.R 91
  • Kenya Ports Authority v Festus Kipkorir Kiprotich
    [2014] eKLR
On appeal from
Chief Magistrate's Court at Kakamega (CMELRC)
CMELRC No. 151 of 2019
Jurisdiction invoked
Appellate jurisdiction over appeals from the magistrates' courts in employment and labour matters

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, "Kenya Aids NGOs Consortium (KANCO) v Okumu (Employment and Labour Relations Appeal 6 of 2023) [2023] KEELRC 2810 (KLR)", Case Analysis (2023). Appeal from Kakamega CMELRC No. 151 of 2019 (Memorandum of Appeal dated 8th March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2810/eng@2023-11-09

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