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ELRCPartially AllowedMemorandum of Claim dated 5th July 2016, filed 8th July 2016· [2024] KEELRC 2605 (KLR)

Ogot v Kenya Water and Sanitation Civil Society Network (Cause 1334 of 2016) [2024] KEELRC 2605 (KLR)

Employment and Labour Relations Court
24 October 2024
MOMAUREEN ONYANGO
4,580 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an employee over Kshs. 618,000 after her employer failed to prove valid reasons for firing her or give her a fair disciplinary hearing.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as an Administrative Assistant on a two-year contract renewed for three years from 1st August 2015, was terminated on 11th May 2016 following allegations of procurement irregularities, unauthorised hotel bookings and misuse of service providers arising from the World Water Day event in Kisumu. She claimed the termination was substantively and procedurally unfair and sought notice pay, untaken leave, the unspent balance of her fixed term contract, 12 months' damages, a certificate of service and costs. The Respondent maintained she committed financial and proprietary malpractices amounting to gross misconduct and was taken through a fair disciplinary process. The court framed two issues: whether the contract was unfairly terminated and whether the Claimant was entitled to the reliefs sought. Applying sections 43, 45 and 41 of the Employment Act, the court found the Respondent failed to prove valid reasons: hotel staff were not called as witnesses, it was uncontested that Dennis never travelled to Kisumu, and no policy prohibited the Claimant's conduct. It also found the disciplinary process unfair, as the Claimant was ambushed at a meeting and no minutes were produced. The termination was therefore unfair both substantively and procedurally. The court awarded three months' notice pay, untaken leave pay, and six months' compensation under section 49(4), but dismissed the claim for the unspent term of the fixed term contract as having no legal or contractual basis. A certificate of service was ordered, with costs and interest to the Claimant.

Key legal issues

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01

Whether the Respondent had valid reason to terminate the Claimant's employment

Holding

The Respondent failed to discharge the burden of proving valid reason; the accusations were not substantiated by compelling evidence

Reasoning

The hotel staff who allegedly confirmed occupation of the room were never called as witnesses, the hotel did not produce particulars of identity of the occupant, and it was uncontested that Dennis did not travel to Kisumu and could not have occupied the room. No policy document prohibited using contracted service providers for private services, and the Claimant paid for her own tickets. The explanation of the Claimant therefore stood unrebutted.

p. 9
02

Whether a fair procedure was followed before termination

Holding

No fair procedure was followed; the Claimant was ambushed into a disciplinary hearing and no minutes were produced

Reasoning

Section 41 requires an employer to explain reasons and afford the employee a hearing. The Claimant testified she was invited to a meeting and only realised in the meeting that it was a disciplinary hearing, without time to prepare or prior notice of charges. The court found the Respondent did not rebut that evidence, and there were no minutes of the alleged hearing to prove she was given an opportunity to defend herself.

p. 10
03

Quantum of compensation for unfair termination

Holding

Maximum 12 months' compensation would be excessive given three years' service; 6 months' salary awarded

Reasoning

Taking into account the length of service, the circumstances of the termination and the relevant factors under section 49(4) of the Employment Act, the court considered maximum compensation excessive and awarded 6 months' salary as reasonable, alongside contractual notice pay and untaken leave which were undisputed or contractually provided for.

p. 10

Legal principles established

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  • Under section 45 of the Employment Act, termination is unfair if the employer fails to prove valid and fair reasons and a fair procedure
  • The employer bears the burden of proving the reason for termination; failure means the termination is deemed unfair

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent: 3 months' salary notice pay Kshs. 194,400
  2. 2.Untaken leave days @ 14 days Kshs. 34,892
  3. 3.6 months' compensation for unlawful termination Kshs. 388,800 (total Kshs. 618,092)
  4. 4.A certificate of service to be issued to the Claimant within 30 days of the judgment
  5. 5.The Claimant is awarded costs and interest

Authorities

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Legislation

  • Employment Actsection 45
  • Employment Actsection 43
  • Employment Actsection 41
  • Employment Actsection 44
  • Employment Actsection 49(4)
  • Employment Act 2007Sec. 44
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act

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, "Ogot v Kenya Water and Sanitation Civil Society Network (Cause 1334 of 2016) [2024] KEELRC 2605 (KLR)", Case Analysis (2024). Memorandum of Claim dated 5th July 2016, filed 8th July 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2605/eng@2024-10-24

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