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ELRCDismissedCause No 485 of 2019· [2024] KEELRC 866 (KLR)

Oyugi v SOS Children’s Villages - Kenya (Cause 485 of 2019) [2024] KEELRC 866 (KLR)

Employment and Labour Relations Court
22 April 2024
JGJACOB GAKERI
3,907 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a director's unfair termination claim, confirming employers win when they prove both a valid reason and fair procedure.

What this practically means

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Executive summary

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The Claimant, confirmed in 2012 as Village Director - Kisumu for the Respondent at a basic salary of Kshs.105,966.65, sued for unfair termination following his dismissal on 22nd March 2018 on grounds of gross misconduct arising from his handling of the case of Sarah Nyaboke, a class 6 child. He sought 12 months' salary as compensation (Kshs.1,343,604) and general damages of Kshs.5,000,000. The Respondent admitted the employment relationship but maintained that the termination was substantively and procedurally fair, having gone through a notice to show cause, a disciplinary hearing and Regional Director approval. The court framed two issues: whether the termination was unfair, and whether the Claimant was entitled to the reliefs sought. On substantive fairness, it found the Claimant handled the girl child's case alone, without involving the mothers at the Village or the Child Protection Team of which he was Chairperson, and without proof that any counselling session occurred; applying the band of reasonableness test and Section 43(2) of the Employment Act, this amounted to a valid and fair reason for termination. On procedure, the court held that although recalling an employee from annual leave is not good practice and should be a last resort, the Respondent contacted the Claimant by phone and email and gave him adequate notice of the hearing; he failed to respond until the hearing day, so suffered no prejudice. Both elements of Section 45 were satisfied. The compensation prayer was unsustainable and the general damages prayer failed per the Court of Appeal's decision in Kenya Broadcasting Corporation v Geoffrey Wakio. The suit was dismissed with each party bearing its own costs.

Key legal issues

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01

Substantive fairness of the termination

Holding

The Respondent proved a valid and fair reason for termination

Reasoning

The Claimant, though Chairperson of the Child Protection Team, handled a girl child's case alone without involving the mothers at the Village or the Child Protection Team, and adduced no evidence that any counselling session took place. The court applied the band of reasonableness test: the employer need only show reasons it genuinely believed to exist on a balance of probability. Failure to follow laid-down procedures in handling the child's case amounted to a valid reason.

p. 6
02

Procedural fairness of the termination

Holding

The procedure complied with Section 41 of the Employment Act

Reasoning

The Claimant was recalled from leave by phone and email with the notice to show cause attached, and was served with a disciplinary hearing notice on 26th February 2018 for a hearing on 2nd March 2018. He took no steps to respond until the day of the hearing. The court held the recall from leave, while not good practice, caused the Claimant no prejudice beyond recoverable transport charges, and that he was accorded sufficient time to respond and prepare.

p. 8
03

Entitlement to compensation and general damages

Holding

Both prayers declined since the termination was fair

Reasoning

Having found the termination substantively justifiable and procedurally fair, the statutory compensation claim could not stand. General damages for wrongful/unfair termination are not awardable per the Court of Appeal in Kenya Broadcasting Corporation v Geoffrey Wakio; damages for unfair dismissal are limited to salary in lieu of notice. No evidence of entitlement to general damages was adduced.

p. 9

Legal principles established

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  • For a termination to be fair, the employer must show both substantive justification (a valid and fair reason) and procedural fairness.
  • Under Section 43(2) of the Employment Act, the reasons for termination are those the employer genuinely believed to exist, tested on a balance of probability (the band of reasonableness test).
  • Recalling an employee from annual leave is permissible only exceptionally and as a last option, having regard to the prejudice likely to be occasioned to the employee.
  • The right to uninterrupted annual leave is an integral part of the reasonable working conditions guaranteed by Article 41 of the Constitution.

Court orders

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  1. 1.The Claimant's case against the Respondent is dismissed for want of merit.
  2. 2.Each party to bear its own costs.

Authorities

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Legislation

  • Employment Act, 2007Sections 35, 41, 43, 43(2), 44(4), 45, 45(5), 47(5), 28, 28(3)
  • Constitution of Kenya, 2010Article 41; Article 159(2)(d); Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (11)

  • CMC Aviation Ltd v Mohamed Noor
    (2015) eKLR
  • Anthony Mkala Chitavi v Malindi Water and Sewerage Co. Limited
    (2013)
  • Langat v Uniliver Tea Kenya Limited
    Cause E004 of 2021 (2022) KEELRC 1238
  • Kenya National Private Security Workers Union v Security Guards Services Limited
    (2020) eKLR
  • Kenya Broadcasting Corporation v Geofirey Wakio
    (2019) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Naima Khamis v Oxford University Press (E.A) Ltd
    (2017) eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    (2019) eKLR
  • British Leyland UK Ltd v Swift
    (1981) IRLR 91
  • Pius Machafu Isindu v Lavington Security Guards Ltd
    (2017) eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    (Supra)
Jurisdiction invoked
Employment Act, 2007 (Sections 35, 41, 43, 44(4), 45, 47(5)) read with Article 41 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, "Oyugi v SOS Children’s Villages - Kenya (Cause 485 of 2019) [2024] KEELRC 866 (KLR)", Case Analysis (2024). Cause No 485 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/866/eng@2024-04-22

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