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ELRCPartially AllowedNot stated in judgment (memorandum of claim filed 25/4/2014)· [2024] KEELRC 1270 (KLR)

Odoyo v Invesco Assurance Company Limited (Employment and Labour Relations Cause 672B of 2014) [2024] KEELRC 1270 (KLR)

Employment and Labour Relations Court
23 May 2024
MNMathews Nderi Nduma
1,605 words in judgment
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The bottom line

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A Kenyan court awarded a dismissed cashier over Kshs. 396,000 because his employer failed to give him a fair hearing before summarily dismissing him.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a cashier at its Thika office by letter of appointment dated 27/9/2004, was summarily dismissed on 25/11/2013 after being accused of negligently occasioning the company a loss. Following a notice to show cause and suspension, he responded seeking files to reconcile the alleged missing funds but was not given a hearing before dismissal. He sued seeking notice pay, leave pay for five years, salary for the unexpired 25 years of contract, gratuity, damages, a certificate of service, costs and interest. The respondent filed a defence of general denial but tendered no evidence, leaving the claimant's evidence unrebutted. The court held that the claimant still bore the burden of proof on a balance of probability. It found that the respondent violated sections 36, 41, 43 and 45 of the Employment Act 2007, the dismissal being without valid reason or fair procedure, and awarded payment in lieu of notice of Kshs. 44,090/= and compensation of eight months' salary (Kshs. 352,720/=) under section 49, guided by the Kenfreight decision. Leave pay and gratuity/severance claims were dismissed as unproved. Judgment was entered for a total of Kshs. 396,810/= with interest at court rates from the date of judgment, costs of the suit to the claimant, and provision of a certificate of service within 30 days. Judgment dated 23 May 2024, Nairobi, delivered by Mathews Nderi Nduma, Judge.

Key legal issues

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01

Whether the summary dismissal was for a valid reason and by fair procedure

Holding

The dismissal violated sections 36, 41, 43 and 45 of the Employment Act 2007; there was no valid reason and no fair procedure

Reasoning

The respondent filed a statement of defence but tendered no evidence. The claimant was accused of negligently losing funds, responded to the notice to show cause, but was not given a hearing before summary dismissal. The respondent failed to prove a valid reason arrived at in adherence to section 41. The unrebuted evidence of the claimant stood, applying the KPLC v Pamela Ogunyo approach, subject to the claimant proving the claim on a balance of probability.

p. 3
02

What remedies the claimant is entitled to on unlawful and unfair dismissal

Holding

Payment in lieu of notice (Kshs. 44,090/=) and compensation equivalent to eight months' salary (Kshs. 352,720/=) under section 49(1)(c) and (4); leave pay and gratuity claims dismissed for want of proof

Reasoning

Guided by Kenfreight EA Ltd v Benson K Nguti, upon finding dismissal unlawful the court must award section 49 remedies guided by subsection (4). Considering the claimant's salary of Kshs. 44,090/=, the loss of employment without notice, lack of terminal benefits and no certificate of service, the court awarded eight months' salary as compensation. Leave and gratuity claims failed for want of proof.

p. 4

Legal principles established

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  • A respondent who fails to tender any evidence leaves the claimant's uncontroverted evidence to stand, subject to the claimant proving the claim on a balance of probability
  • Section 41 of the Employment Act sets the minimum standard of fair procedure with four elements that must be discernible
  • Section 49 of the Employment Act provides remedies for unlawful and wrongful termination and it is for the judge to exercise discretion in awarding them

Court orders

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  1. 1.Kshs. 44,090/= in lieu of notice
  2. 2.Kshs. 352,720/= being the equivalent of eight months' salary as compensation for unlawful and unfair dismissal
  3. 3.Total award of Kshs. 396,810/= with interest at court rates from date of judgment till payment in full
  4. 4.Costs of the suit to the claimant
  5. 5.Provision of certificate of service within 30 days of the judgment

Authorities

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Legislation

  • Employment Act 2007section 41
  • Employment Act 2007sections 36, 41, 43 and 45
  • Employment Act 2007sections 49(1)(c), 49(1), 49(3) and 49(4)
  • Evidence Act, Cap 80 Laws of Kenyasections 107 and 108

Cases cited (3)

  • KPLC Ltd versus Pamela Ogunyo
    [2015] eKLR
  • Postal Corporation of Kenya versus Andrew Tanui
    [2019] eKLR
  • Ken freight EA Limited versus Benson K Nguti
    2019 eklr, Petition 37 of 2018
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (memorandum of claim under the Employment Act 2007)

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, "Odoyo v Invesco Assurance Company Limited (Employment and Labour Relations Cause 672B of 2014) [2024] KEELRC 1270 (KLR)", Case Analysis (2024). Not stated in judgment (memorandum of claim filed 25/4/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1270/eng@2024-05-23

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