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ELRCPartially AllowedPetition dated 28th February 2023· [2023] KEELRC 3046 (KLR)

Otengo v Sana Industries Co. Ltd (Employment and Labour Relations Petition E035 of 2023) [2023] KEELRC 3046 (KLR)

Employment and Labour Relations Court
24 November 2023
AMANNA NGIBUINI MWAURE
4,896 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employee was unfairly fired over his health, awarding him over Kshs 305,000 because the employer filed no proper defence.

What this practically means

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Executive summary

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The Petitioner, employed as a general worker from 1st August 2008 on an oral contract later confirmed in 2013, alleged that after falling ill in March 2022 and being hospitalised at KUTRRH for a month, he was repeatedly asked to go home upon attempting to resume duty and was verbally dismissed on account of his health status after presenting discharge notes disclosing tuberculosis and HIV. He sought declarations of violation of various Bill of Rights provisions, terminal benefits, compensation, general and exemplary damages, costs and interest. The Respondent denied the discrimination claim, asserting the Petitioner was granted indefinite sick leave, never resumed duty and absconded. The court framed four issues. First, it held that in the absence of a replying affidavit, the Respondent's 'Response to Petition' did not controvert the Petitioner's sworn averments, which were deemed admitted. Second, it held the ELRC had jurisdiction under Articles 23 and 162(2) because the termination hinged on alleged discrimination based on health status. Third, applying Gichuru v Package Insurance Brokers and the burden provisions of sections 5(7) and 47(5) of the Employment Act, it found the Respondent had adduced no evidence of compliance with section 41 or of efforts to contact an allegedly absconded employee, and held the termination unfair, unprocedural and based on health status. The court awarded Kshs 305,999/98 comprising notice pay, unpaid salary and six months' salary as compensation, denied house allowance and public holiday claims as unproved, awarded costs and interest, and ordered a certificate of service within 30 days.

Key legal issues

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01

Effect of failure to file a replying affidavit in opposition to a petition

Holding

The petition is deemed unopposed and the petitioner's sworn averments admitted

Reasoning

Relying on Car Importers Association of Kenya v County Government of Mombasa and Daniel Kibet Mutai & 9 Others v Attorney General, the court held that a replying affidavit is an essential pleading. Grounds of opposition or a written response cannot amount to a proper denial of allegations made on oath. Uncontroverted affidavit evidence is assumed admitted, leaving the court no facts to find otherwise.

p. 7
02

Jurisdiction of the ELRC over a termination allegedly based on health status

Holding

The ELRC has jurisdiction under Articles 23 and 162(2) of the Constitution

Reasoning

The Respondent argued the unfair termination claim belonged in the magistrates' court. The court held that because the termination was premised on health status and thus hinged on discrimination, the petition properly fell within the ELRC's jurisdiction to redress violations of Bill of Rights relating to employment and labour relations.

p. 7
03

Whether the Petitioner was discriminated against on health status and unfairly terminated

Holding

Yes - the termination was unfair, unprocedural and based on health status

Reasoning

With the petition unopposed, the Petitioner's averments stood admitted. The Respondent produced no affidavit evidence to dispel the discrimination claim or to show it complied with section 41 of the Employment Act, nor evidence of efforts to reach an employee it alleged had deserted duty. Desertion requires proof of the employee's intention not to return and a fair process before termination.

p. 10
04

Entitlement to remedies

Holding

Petitioner awarded notice pay, unpaid salary and six months' salary as compensation; house allowance and public holiday claims denied for want of proof

Reasoning

The court assessed quantified remedies: one month's salary in lieu of notice, unpaid salaries for March to August 2022, and compensation equivalent to six months' salary for the unlawful termination on account of ill health. House allowance and public holiday claims failed as unproved. Costs and interest were awarded and a certificate of service ordered.

p. 10

Legal principles established

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  • Failure to file a replying affidavit means the petitioner's averments stand uncontroverted and are deemed admitted
  • The ELRC has jurisdiction over employment terminations premised on alleged discrimination based on health status
  • An employer claiming desertion or absconding must prove efforts to contact the employee and afford procedural fairness under section 41 of the Employment Act

Court orders

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  1. 1.One-month salary in lieu of notice of Kshs 26,000/-
  2. 2.Balance salary of days worked in March 2022 of Kshs 9,999/-
  3. 3.Unpaid salary for April, May, June and July (4 months) of Kshs 104,000/-
  4. 4.Unpaid salary for 10 days in August 2022 of Kshs 9,999/99
  5. 5.Compensation for unlawful termination and damages equivalent of 6 months' salary, Kshs 156,000
  6. 6.Total award of Kshs 305,999/98
  7. 7.Costs awarded to the claimant with interest at court rates from date of judgment till full payment
  8. 8.Certificate of service to be issued within 30 days hereof
Jurisdiction invoked
Articles 23 and 162(2) of the Constitution of Kenya, 2010

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, "Otengo v Sana Industries Co. Ltd (Employment and Labour Relations Petition E035 of 2023) [2023] KEELRC 3046 (KLR)", Case Analysis (2023). Petition dated 28th February 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3046/eng@2023-11-24

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