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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 2105 (KLR)

Marete v Bernard Ondieki t/a Moseti and Company Advocates (Cause 873 of 2019) [2024] KEELRC 2105 (KLR)

Employment and Labour Relations Court
2 August 2024
2,019 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, an Associate Advocate formerly engaged by B. Moseti and Company Advocates under an oral contract, sued for unfair termination, claiming June 2018 salary, notice pay, service pay, an unpaid salary increment, leave allowance, 12 months' compensation, confirmation of statutory remittances, a certificate of service, interest and costs. He asserted a gross salary of Kshs. 86,000/- rising to Kshs. 96,000/-, unpaid overtime and denial of annual leave, and that his employment ended informally on 26th June 2018 without warning or procedure. The Respondent countered that the gross salary was Kshs. 70,000/-, that the Claimant absconded after an altercation rather than being terminated, and filed a counterclaim for Kshs. 7,385,000/- in lost income, a Kshs. 240,000/- loan and one month's notice pay. The court framed four issues: existence of employment, due process, quantum and costs. It held the Respondent was bound to hear the Claimant before terminating the contract whether oral or written, and found the termination unfair and unlawful. Mitigation reduced compensation to eight months' salary (Kshs. 560,000/-) plus one month's notice (Kshs. 70,000/-). Service pay and overtime were refused. The counterclaim failed as no evidence connected the alleged losses to the Claimant; the emails produced showed diligence, not negligence. The declaration, compensation, notice pay, certificate of service under section 51 of the Employment Act, interest and costs were granted; the statutory remittance confirmation claim was declined as self-verifiable. Judgment delivered at Nairobi on 2nd August 2024 by Nzioki Wa Makau, Judge.

Key legal issues

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01

Whether termination of the Claimant's employment was procedurally fair

Holding

Termination was unfair and unlawful because the Respondent failed to hear the Claimant before termination, irrespective of the contract being oral

Reasoning

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.

p. 3
02

Quantum of compensation for unfair termination

Holding

Eight months' salary at Kshs. 70,000/- per month, totalling Kshs. 560,000/-, was awarded instead of the maximum 12 months

Reasoning

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.

p. 3
03

The Respondent's counterclaim for loss of income and the loaned amount

Holding

The counterclaim failed for want of proof connecting the alleged losses to the Claimant

Reasoning

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.

p. 3
04

Claim for confirmation of KRA, NHIF and NSSF payments

Holding

The claim was declined as the Claimant could readily verify the payments himself

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.A declaration that his termination was unfair and unlawful.
  2. 2.Compensation – Kshs 560,000/-
  3. 3.One month's notice – Kshs. 70,000/-
  4. 4.Costs of the suit.
  5. 5.Certificate of service strictly in terms of section 51 of the Employment Act.
  6. 6.Interest at court rates on the sums in (b) and (c) above from the date of judgment till payment in full.

Authorities

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Legislation

  • Employment Actsection 51

Cases cited (2)

  • Simon Munga Gachuhi v Kiru Tea Factory
    [2016] eKLR
  • Oire v The County Government of Machakos & another
    (Cause 379 of 2020) [2022] KEELRC 47 (KLR) (26 April 2022) (Judgment)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (first-instance cause)

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, "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.