Ojijah v Trees for the Future INC (Cause E010 of 2023) [2024] KEELRC 1722 (KLR)
The bottom line
#A Kenyan court ruled an employee's dismissal was fair after he ignored a disciplinary hearing and kept his employer's money, then ordered him to repay over Kshs 334,000.
What this practically means
#Executive summary
#Key legal issues
#Constructive dismissal
Not proved; the Claimant was summarily dismissed and never resigned
The court held that constructive dismissal requires resignation induced by the employer's breach or unbearable conditions. The Claimant's pleadings, testimony and the Respondent's evidence all showed summary dismissal for gross misconduct, not resignation. No evidence of constructive dismissal was led.
Procedural fairness of dismissal
Dismissal was procedurally fair; the Claimant squandered the internal process
The Claimant received a show cause letter and invitation to a disciplinary hearing by email, admitted receipt, yet neither responded nor attended. His only reservation was that the hearing was online, for which no legal basis was advanced. Following Feroz Ali Omar v ECU Worldwide, an employee who refuses to engage internal mechanisms cannot claim he was not heard.
Substantive fairness of dismissal
Valid, fair and justified reasons existed for the summary dismissal
The Claimant admitted receiving Kshs 708,750/= and failed to refund it despite demand. He claimed he spent the money on Respondent's operations, yet the letter of administrative leave barred him from transacting for the Respondent, which he admitted knowing. His receipts were dated before the money was sent, confirming no payments were made on receipt.
Respondent's counterclaim
Allowed as prayed for Kshs 334,507/= after offsetting terminal dues
Relying on Liech v Sameer Agricultural & Livestock (K) Ltd, the court found the Claimant neither refunded nor utilised the monies for the Respondent's benefit. The Respondent computed terminal dues of Kshs 374,242.51/= and applied them against the Kshs 708,750/= disbursed, leaving Kshs 334,507.49/= outstanding under Section 19 of the Employment Act.
Legal principles established
#- Constructive dismissal requires that the employee resigns by reason of the employer's conduct making continued employment untenable
- An employer must prove valid and fair reasons for dismissal under Sections 43, 45 and 47(5) of the Employment Act
- An employer may recover unrefunded monies from an employee's terminal dues under Section 19 of the Employment Act
Court orders
#- 1.A declaration that the Claimant's dismissal from the service of the Respondent is not unfair
- 2.An order that the Claimant pays the Respondent the amount of the Counter-claim at Kshs.334,507/=
- 3.The Claimant shall bear the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ojijah v Trees for the Future INC (Cause E010 of 2023) [2024] KEELRC 1722 (KLR)", Case Analysis (2024). ELRC Cause at Kisumu (Memorandum of Claim dated 25th January 2023, filed 2nd February 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1722/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.