Ombajo v Institute of Certified Public Accounts of Kenya (ICPAK) (Employment and Labour Relations Cause 224 of 2014) [2024] KEELRC 1865 (KLR)
The bottom line
#Kenya's Employment Court awarded a sacked manager Kshs. 5.4 million after finding his disciplinary hearing on one day's notice was unfair.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Assessment of damages for unfair termination following the Court of Appeal's finding that the termination was procedurally unfair
Key legal issues
#Quantum of compensation for unfair termination
Eight months' salary awarded as compensation, taking into account the procedural unfairness established by the Court of Appeal, between the Claimant's claim of twelve months and the Respondent's offer of two months.
The Court of Appeal had conclusively found the disciplinary process unfair because the Claimant was given inadequate notice of the disciplinary hearing. The court exercised its discretion under section 49 of the Employment Act to fix compensation at eight months' salary, midway between the parties' positions, rather than the maximum twelve months sought or the two months offered by the Respondent.
Admitted dues: leave pay and March 2014 salary
52 leave days and 5 days' March 2014 salary awarded as admitted by the Respondent.
The Respondent had refused to pay leave dues on the ground that the Claimant had not cleared, a justification rejected at trial. The leave dues (52 days) and the March 2014 salary for 5 days were admitted by the Respondent, so the court awarded both on computation against the monthly salary of Kshs. 594,375.
Notice pay and certificate of service
One month's salary in lieu of notice awarded (rather than three months claimed) and a certificate of service ordered.
Although the Claimant claimed three months' notice pay under the Revised Terms and Conditions of Service, the court awarded one month's salary in lieu of notice. The court also ordered issuance of a certificate of service, consistent with the statutory obligation relied on by the Claimant.
Legal principles established
#- An employee found to have been unfairly terminated through a procedurally defective disciplinary process is entitled to compensation under section 49 of the Employment Act, quantified at the court's discretion.
Court orders
#- 1.Payment of 52 leave days at Kshs. 1,030,250
- 2.Payment of March 2014 salary for 5 days at Kshs. 99,062.5
- 3.Compensation for unfair termination of 8 months' salary at Kshs. 4,755,000
- 4.One month's salary in lieu of notice at Kshs. 594,375
- 5.Set-off of the counterclaim of Kshs. 1,080,000 awarded to the Respondent, leaving a balance of Kshs. 5,398,687.5 less statutory deductions
- 6.Issuance of a Certificate of Service to the Claimant
- 7.Respondent to pay costs of the suit and of the appeal plus interest from the date of judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Jurisdiction restored on remittal by the Court of Appeal under the Employment Act (section 49) for assessment of damages for unfair termination
Relief refused
#Reinstatement or redeployment
Claimant himself conceded impracticability given the long pendency of the suit and appeal
Service pay of Kshs. 2,917,875 (one month's salary per year worked)
Not addressed or awarded in the court's final orders despite being claimed
General and exemplary damages
Not awarded in the final orders
Three months' salary in lieu of notice
Court awarded only one month's salary in lieu of notice instead of the three months claimed
Costs
The Respondents will pay costs of this suit and of the appeal plus interest with effect from the date of this judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I therefore allow this prayer for payment of 52 leave days being 52/30 x 594,375 = 1,030,250/=
given the unlawful termination meted against the Claimant in the disciplinary process as established by the Court of Appeal, I find he is entitled to compensation which I award at 8 months’ salary = 8 x 594,375 = 4,755,000/=
I also award Claimant 1 months’ salary in lieu of notice = 1 x 594,375 = 594,375/=
The Respondents will pay costs of this suit and of the appeal plus interest with efiect from the date of this judgment.
Issues in the judgment
#The counterclaim is stated as Kshs. 1,165,000 in paragraph 2, but the set-off in the final computations uses Kshs. 1,080,000 attributed to paragraph 72 of the earlier judgment.
The claimant's arithmetic for service pay (594,375 x 5 = 2,917,875) is internally inconsistent on the face of the judgment.
The memorandum of claim lists salary for 5 days worked in March 2013 while the judgment and pleadings elsewhere refer to March 2014.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ombajo v Institute of Certified Public Accounts of Kenya (ICPAK) (Employment and Labour Relations Cause 224 of 2014) [2024] KEELRC 1865 (KLR)", Case Analysis (2024). Not stated in the judgment (original memorandum of claim dated 17th June 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1865/eng@2024-07-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.