Simeon Kipkoech Koskey v Rosoga Investment Limited [2020] KEELRC 1071 (KLR)
The bottom line
#A Kenyan court ruled a clerk's dismissal for reporting two hours late was unfair, awarding him over Ksh.247,000 because his employer couldn't prove fair procedure.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the summary dismissal of the claimant on 10th October, 2016 for absconding duty was fair and justified
- 2.Whether the respondent complied with sections 41 and 44 of the Employment Act in terminating the claimant's employment
- 3.Whether the claimant is entitled to notice pay and compensation under sections 35 and 49 of the Employment Act
- 4.Whether the claimant was underpaid relative to the minimum wage for a clerk
- 5.Whether the claimant is entitled to overtime pay, service pay/gratuity and a certificate of service
Key legal issues
#Fairness of the summary dismissal
The summary dismissal was unfair; the reason relied on (absconding duty) was not genuine or valid and the sanction was too harsh
The claimant applied for leave on 8th October, 2016 and left it with his supervisor for approval through the proper chain. He was directed to report on 10th October, 2016 to collect the approval letter, and the supervisor knew his whereabouts. Reporting at 10am instead of 8am could have been addressed by a wage deduction under section 19(1)(c). The dismissal was therefore unjustified and unfair under section 45.
Procedural compliance under sections 41 and 44
The respondent did not comply with the procedural requirements; the notice to show cause and disciplinary hearing notices did not reach the claimant and were an afterthought
The letters dated 13th and 17th October, 2016 bore no forwarding address to the claimant, and the alleged server (Caleb Tanui) was not called to prove service. More fundamentally, employment had already been terminated on 10th October, 2016, so subsequent notices could not cure the defective process.
Underpayment of wages
The claimant was underpaid against the statutory minimum wage for a clerk, totaling Ksh.176,229.20
Applying the Regulation of Wages (General) (Amendment) Order, 2013, the minimum wage was Ksh.13,772.70 from 1st May, 2013 (23 months' underpayment of Ksh.82,172.10) and Ksh.15,425.40 from May, 2015 (18 months' underpayment of Ksh.94,057.20), against the Ksh.10,200 the claimant was paid.
Credibility of the respondent's records
The respondent's records were found manipulated and its defence of a dating error far-fetched
The letter correcting the termination date from 10th to 20th October was not produced, the statement of final dues was overwritten and not counter-signed regarding dates, and the respondent's own letter of recommendation dated 16th November, 2016 confirmed termination on 10th October, 2016.
Legal principles established
#- Where an employee applies for leave and leaves it with his supervisor for approval, he has a legitimate expectation that the leave would be approved, and the supervisor knows his whereabouts
- Summary dismissal for a two-hour absence where the supervisor was aware of the employee's whereabouts is not based on a genuine and valid reason and is unfair under section 45 of the Employment Act
- Notices issued after the date of termination cannot sanitise a dismissal already effected; such notices are an afterthought
- A person alleged to have served notices on an employee should be called to testify as to where and when service occurred; absent such testimony the service has no foundation
Court orders
#- 1.Compensation of Ksh.53,217.63
- 2.Notice pay of ksh.17,793.21
- 3.Underpayments of ksh.176,229.20
- 4.Dues (a), (b) and (c) above shall be subject to section 49(2) of the Act
- 5.Costs of the suit to the claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination and terminal dues claim)
Relief refused
#Service pay/gratuity of Ksh.15,425
The claimant was registered with NSSF and NHIF and there was no agreement to pay gratuity
Overtime pay of Ksh.85,432.89
The court found the respondent's explanation of working hours plausible
Certificate of service
Not expressly addressed or awarded in the final orders
Costs
Costs of the suit awarded to the claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, judgement is hereby entered for the claimant against the respondent in the following terms; (a) Compensation Ksh.53,217.63; (b) Notice pay ksh.17,793.21; (c) Underpayments ksh.176,229.20; (d) Dues (a), (b), and (c ) above shall be subject to section 49(2) of the Act; (e) Costs of the suit.
The termination of employment is found unfair pursuant to the provisions of section 45 of the Act, and the claimant is entitled to notice pay and compensation under the provisions of sections 35 and 49 of the Act.
the court finds the claimant had a legitimate expectation that his leave would be approved as he had left it with his supervisor, Kiptoo who in turn was to hand it to Muya and eventually to the operations manager, Serem.
In an effort to sanitise the process, the respondent wrote the notices after 10 th October, 2016 which is evidently an afterthought.
Issues in the judgment
#Discrepancy in the date the disciplinary hearing notice was allegedly issued: the narrative says 16th October, 2016 while the defence is later recorded as citing 19th October, 2016
Discrepancy in the notice pay figure: the claim sought notice pay of ksh.17,739.21 but the final order awards ksh.17,793.21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simeon Kipkoech Koskey v Rosoga Investment Limited [2020] KEELRC 1071 (KLR)", Case Analysis (2020). Cause No. 139 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1071/eng@2020-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.