Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment as provided· [2016] KEELRC 83 (KLR)

Harrison Musoga Obimbo v Kenya Power & Lighting Company Limited [2016] KEELRC 83 (KLR)

Employment and Labour Relations Court of Kenya
20 December 2016
HWHellen Wasilwa
1,957 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

#

A Kenyan court ordered an employer to reinstate and pay a worker removed from payroll without a hearing or valid reason.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent since 1979 and risen to Level 3 Assistant Superintendent at the Kisumu Depot, sued for unconditional reinstatement and salary arrears after his name was removed from the payroll following a letter alleging desertion of duty from 14th July to 5th September 2014. He claimed he collapsed at work on 14th July 2014, was treated at Aga Khan Hospital, and was granted 39 days leave by SMS plus subsequent bed rest, with the Respondent paying his medical bills. The Respondent admitted the employment relationship but asserted he absconded without permission, that show cause letters and a disciplinary hearing invitation went unanswered, and sought dismissal of the claim, invoking Sections 19(1)(c), 44(4) and 49(4) of the Employment Act and authorities to the effect that reinstatement is granted only in exceptional circumstances. The court found the Claimant was unwell and produced medical evidence; a DCI-confirmed SMS showed 39 days leave was approved by his supervisor from 16.7.2014, and though not the normal approval mode, the Claimant could not be victimized for relying on it. The court found no valid reason for termination. On procedure, the show cause letter bore no forwarding address and the disciplinary hearing notice was neither signed as received nor forwarded to the Claimant, breaching Section 41. The removal from the payroll was therefore unfair and unjustified. The court ordered reinstatement within 14 days, payment of all outstanding salaries and allowances from the date of removal, retirement in the normal course if the Claimant had reached retirement age, and costs to the Claimant.

Key legal issues

#
01

Valid reason for termination

Holding

There was no valid reason to terminate the Claimant's services since his absence was on approved leave and supported by medical evidence

Reasoning

The court noted the Claimant was unwell and produced medical evidence. The Respondent paid his medical bills as employer. The Claimant produced an SMS approving 39 days leave effective 16.7.2014, confirmed by a DCI report. Though SMS approval was not the Respondent's normal practice, the supervisor granted the leave and the Claimant relied on it, so no valid reason for termination existed.

p. 3
02

Due process under Section 41 of the Employment Act

Holding

The Claimant was never served with a show cause letter nor subjected to a disciplinary hearing, breaching Section 41

Reasoning

The Claimant denied receiving the show cause letter dated 24.9.2014 or notice of the 29.10.2014 disciplinary hearing. Appendix 3 bore no forwarding address and Appendix 4 was not signed as received and was not forwarded to the Claimant despite being received in Kisumu on 23.10.2014. The court found the requirements of Section 41 were not met.

p. 3
03

Fairness of removal from payroll

Holding

The removal of the Claimant from the payroll was unfair, unjustified and tantamount to unfair termination

Reasoning

No termination letter was displayed despite the Claimant denying receipt of one, yet the Respondent removed him from the payroll. Combined with the absence of a valid reason and breach of due process, the removal amounted to unfair and unjustified termination, warranting reinstatement and payment of outstanding dues.

p. 4

Legal principles established

#
  • Leave granted by an employee's supervisor, though not in the normal manner of approval, binds the employer and the employee cannot be victimized for relying on it
  • Removal of an employee from the payroll without proper reasons and without due process amounts to unfair and unjustified termination

Court orders

#
  1. 1.Reinstatement of the Claimant to the payroll within 14 days
  2. 2.Payment to the Claimant of all outstanding salaries and allowances from the time of removal
  3. 3.If the Claimant has reached retirement age, he should be allowed to retire in the normal course of work
  4. 4.Respondent to pay costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (claim for reinstatement and salary arrears under the Employment Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Harrison Musoga Obimbo v Kenya Power & Lighting Company Limited [2016] KEELRC 83 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/83/eng@2016-12-20

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