Marete v Bernard Ondieki t/a Moseti and Company Advocates (Cause 873 of 2019) [2024] KEELRC 2105 (KLR)
The bottom line
#Kenya's Employment Court ruled that even oral employment contracts require a fair hearing before termination, awarding a former advocate over Kshs 630,000.
What this practically means
#Executive summary
#Key legal issues
#Whether termination of the Claimant's employment was procedurally fair
Termination was unfair and unlawful because the Respondent failed to hear the Claimant before termination, irrespective of the contract being oral
The court found the parties were in an employment relationship which the Respondent did not seriously dispute. Even accepting the Respondent's version that the Claimant left after an altercation, the employer was duty-bound to afford the Claimant a hearing before ending the contract. No warning or hearing preceded the separation, so the termination contravened the stipulated procedure.
Quantum of compensation for unfair termination
Eight months' salary at Kshs. 70,000/- per month, totalling Kshs. 560,000/-, was awarded instead of the maximum 12 months
The court noted the Claimant had a thriving practice by the time of hearing and had mitigated his losses; accordingly the maximum compensation was not merited. Using the gross salary of Kshs. 70,000/- as the multiplier, eight months was considered sufficient. One month's salary in lieu of notice at Kshs. 70,000/- was also awarded, plus a certificate of service under section 51 of the Employment Act and interest on those sums.
The Respondent's counterclaim for loss of income and the loaned amount
The counterclaim failed for want of proof connecting the alleged losses to the Claimant
The Respondent relied on a list of clients and alleged loss of over Kshs. 7 million without any evidential link between the sums, the named clients and the Claimant's conduct. The emails produced actually demonstrated the Claimant's diligence in following up on client matters, not negligence. Privileged client documents were also produced without any waiver, which the court deprecated.
Claim for confirmation of KRA, NHIF and NSSF payments
The claim was declined as the Claimant could readily verify the payments himself
The court held that the Claimant, now practising on his own account, could check his KRA obligations using his PIN or ID number, and could obtain statements from NHIF and NSSF to establish whether payments were made. Nothing therefore turned on this head of claim.
Legal principles established
#- An employer must hear an employee before terminating employment whether the contract is oral or written
- A claimant who mitigates losses will not recover the maximum 12 months' compensation
- Unsubstantiated claims of loss with no evidential connection between sums, clients and amounts will fail
Court orders
#- 1.A declaration that his termination was unfair and unlawful.
- 2.Compensation – Kshs 560,000/-
- 3.One month's notice – Kshs. 70,000/-
- 4.Costs of the suit.
- 5.Certificate of service strictly in terms of section 51 of the Employment Act.
- 6.Interest at court rates on the sums in (b) and (c) above from the date of judgment till payment in full.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (first-instance cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marete v Bernard Ondieki t/a Moseti and Company Advocates (Cause 873 of 2019) [2024] KEELRC 2105 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2105/eng@2024-08-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.