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IndustrialPartially AllowedCause 1851 of 2011· [2012] KEIC 30 (KLR)

Okonji v Sunthesis Limited (Cause 1851 of 2011) [2012] KEIC 30 (KLR)

Industrial Court of Kenya
16 November 2012
OMONESMUS N. MAKAU
1,927 words in judgment
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The bottom line

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A Kenyan court ruled that firing an employee without notice or hearing is unfair and awarded him over Kshs. 319,000 in dues and compensation.

What this practically means

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Executive summary

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The Claimant, a former employee of the Respondent who served from 17-6-2002 to 15-5-2011, sued for terminal dues arising from wrongful and unfair termination. The Respondent admitted the contract but blamed the Claimant and asserted all dues had been paid. The Claimant testified he found a replacement at his desk on 15-5-2011 and was later shown a Performance Improvement Plan Report recommending dismissal which his boss had approved on 6-5-2011 before any hearing. RW1 confirmed the Claimant was never given a hearing after her report. The court framed two issues: who terminated the contract and whether the termination was fair, and the entitlement to remedy. It found the conduct - replacing the Claimant, keeping him waiting without charges, and approving dismissal without notice or hearing - amounted to unilateral and unfair termination under Section 45 of the Employment Act. On remedy, the court awarded accrued leave pay for 32 days (Kshs. 32,164.10), service pay at 15 days per year for 9 years (Kshs. 117,355.50), half a month's salary for May 2011 (Kshs. 13,039.50) and six months' salary for unfair dismissal (Kshs. 156,474.00), totalling Kshs. 319,033.10. It refused the medical benefit and motorcycle mileage claims for want of evidence and the house allowance claim because the contract provided gross pay, and declined the maximum 12 months' compensation. The Claimant also received costs and interest. The award was delivered by ONESMUS N. MAKAU, J on 16 November 2012 at Nairobi.

Key legal issues

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01

Who terminated the contract and whether the termination was fair

Holding

The Respondent unilaterally and unfairly terminated the Claimant's contract within the meaning of Section 45 of the Employment Act

Reasoning

The boss approved the dismissal recommendation on 6-5-2011 before hearing the Claimant, replaced him in his office, and kept him waiting without any charges of misconduct. Even the explanation given on 16-5-2011 was an afterthought after the decision had been sealed. No termination letter, Certificate of Service or terminal dues were issued.

p. 3
02

Whether the Claimant is entitled to the remedies sought

Holding

The court awarded one month's salary in lieu of notice (per the contract), 32 accrued leave days' cash pay, service pay for 9 years at 15 days per year, half month's salary for May 2011 and six months' salary for unfair dismissal, but refused medical benefit, motorcycle mileage and house allowance

Reasoning

The medical benefit and mileage claims lacked evidence; house allowance was excluded because the contract provided gross pay; service pay was awarded for 9 years as RW1 admitted the full service period and there was no evidence under Section 35 to deny it; the maximum 12 months' compensation was not warranted despite the embarrassment suffered.

p. 4

Legal principles established

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  • Termination without notice or hearing is unfair termination within the meaning of Section 45 of the Employment Act
  • Replacement of an employee and denial of access to the workplace constitute unilateral termination of the contract
  • The employer is the custodian of employment records and bears the consequence of failing to produce contrary evidence

Court orders

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  1. 1.Award of accrued leave pay of Kshs. 32,164.10
  2. 2.Award of service pay at 15 days per year for 9 years - Kshs. 117,355.50
  3. 3.Award of half month's salary for May 2011 - Kshs. 13,039.50
  4. 4.Award of six months' salary for unfair dismissal - Kshs. 156,474.00
  5. 5.Total award of Kshs. 319,033.10
  6. 6.Costs and interest to the Claimant

Authorities

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Legislation

  • Employment ActSection 45
  • Employment Act 2007Sections 35, 49 and 50
  • Employment ActSection 35
Jurisdiction invoked
Reference to the Industrial Court under the Employment Act, 2007 (Sections 35, 45, 49 and 50) in an employment dispute

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, "Okonji v Sunthesis Limited (Cause 1851 of 2011) [2012] KEIC 30 (KLR)", Case Analysis (2012). Cause 1851 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2012/30/eng@2012-11-16

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