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ELRCPartially AllowedNot stated in the judgment text provided· [2024] KEELRC 1647 (KLR)

Owuor v Practical Action (Cause E824 of 2022) [2024] KEELRC 1647 (KLR)

Employment and Labour Relations Court
25 June 2024
3,415 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, a former Project Officer – Gender and Advocacy employed by the Respondent NGO under a two-year contract from 18th November 2019, was placed on compulsory leave in July 2020 following allegations of sexual assault, subjected to a disciplinary hearing that found him guilty, and summarily dismissed. His appeal was allowed and a fresh disciplinary hearing held on 23rd October 2020 again ended in termination on grounds of gross misconduct effective 26th October 2020. He sued for a declaration that the termination was unlawful and unfair, expungement of records, salary for the remainder of the contract (Kshs. 1,973,172/-), general damages and costs. The Respondent maintained it accorded the Claimant fair process, that the dismissal was for gross misconduct, and sought dismissal of the suit with costs. The court, Nzioki Wa Makau J, held that although the Respondent made genuine efforts to ensure a fair hearing, it failed to discharge its burden under sections 43(1) and 47(5) of the Employment Act of proving the reasons for termination: the evidence could not clearly connect the Claimant to the allegations, the Claimant was only furnished a summarized account of witness statements, and mere allegations cannot stand as proof even where the employer genuinely believes them. The court also held that the Claimant was not entitled to payment for the balance of the contract since he rendered no service and the contract did not so provide. Judgment was entered for the Claimant for three months' salary as compensation under section 49, being Kshs. 493,293/-, with costs limited to that sum and interest at court rates from the date of judgment until payment in full.

Key legal issues

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01

Whether the employer proved valid grounds for termination under section 43(1) of the Employment Act

Holding

The Respondent failed to discharge its burden; the evidence did not clearly connect the Claimant to the allegations and did not warrant dismissal

Reasoning

Section 43(1) requires the employer to prove the reason for termination. The Respondent genuinely believed the complainant's version but failed to demonstrate why it disregarded the testimony of others. The Claimant was only furnished a summary of 5 of 9 witnesses, and evidence in the Respondent's possession was unable to connect him to the misconduct. Genuine belief without proof is insufficient.

p. 6
02

Whether the Claimant was accorded procedural fairness

Holding

The Respondent made efforts to ensure a fair hearing, including allowing an appeal and a fresh hearing, but failed to avail adequate proof

Reasoning

The Respondent placed the Claimant on administrative leave, invited him to a disciplinary hearing, allowed his appeal and reinstated him for a fresh hearing where he could tender his defence and call a witness. However, the Claimant was not furnished with the full statements, and the Court noted opaqueness in the process. The failure was primarily evidential rather than procedural.

p. 6
03

Whether the Claimant was entitled to salary for the remainder of the contract

Holding

He was not; employees do not automatically obtain payment for the balance of a contract

Reasoning

The Claimant received his terminal dues and Certificate of Service, was not rendering services to the Respondent, and his contract did not provide for continued salary payments regardless of termination. Sufficient basis for such an award was absent.

p. 6

Legal principles established

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  • Even where an employer genuinely believes certain facts to exist, some degree of proof is required; mere allegations cannot justify dismissal
  • Employees do not automatically obtain payment of sums due on the balance of the contract after termination

Court orders

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  1. 1.Kshs. 493,293/-
  2. 2.Costs of the suit based on the sum above
  3. 3.Interest at court rates on the sum in (a) above from the date of judgment till payment in full
Jurisdiction invoked
Original jurisdiction under the Employment Act over a claim of wrongful and unfair termination of employment

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, "Owuor v Practical Action (Cause E824 of 2022) [2024] KEELRC 1647 (KLR)", Case Analysis (2024). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1647/eng@2024-06-25

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