Joseph Odongo Owando v Marie Stopes Kenya [2020] KEELRC 1700 (KLR)
The bottom line
#A Kenyan court awarded a driver 12 months' salary because his employer's disciplinary process skipped basic fairness steps, even though misconduct concerns were valid.
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 Claimant was unfairly and unlawfully terminated from employment by the Respondent
- 2.Whether the summary dismissal was procedurally fair
- 3.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Whether the summary dismissal of the Claimant was substantively and procedurally fair
Although the Respondent had valid reasons to subject the Claimant to disciplinary process, the summary dismissal was procedurally unfair because the charges were not stated in the suspension letter, the right to be accompanied was not disclosed, the respondent lacked a disciplinary procedure manual as required by Section 12 of the Employment Act, and the dismissal was harsh given the Claimant's clean record and long service
The court accepted there was evidence the Claimant breached vehicle-use regulations and gave an account conflicting with the Stoic tracking records, so substantive grounds existed. However, procedural fairness under Section 41 was breached: the suspension/hearing letter omitted the charges and the right to accompaniment; the minutes showed only a minor accusation (failing to tell Mr Mutua he would stay overnight); the Claimant had a plausible explanation; and the respondent had no HR manual on disciplinary procedure as required by Section 12 of the Employment Act.
Whether the Claimant was entitled to compensation and notice pay
The Claimant was awarded one month's salary in lieu of notice (Kshs.55,150) and 12 months' salary (Kshs.661,800) as compensation for unfair termination, taking into account his 17 years of service, clean record and the unfairness of the process
Relying on Section 45 and Section 49(4) of the Employment Act, the court considered the Claimant's long service from 1997 to 2014, his uncontested clean record, the unfair disciplinary process and the harshness of summary dismissal in the circumstances, concluding that 12 months' salary as compensation was appropriate, plus notice pay under Clause 21 of the contract.
Whether reinstatement was available
Reinstatement was refused as the claim was filed and determined more than three years after the 2014 dismissal
Section 12(3)(vii) permits reinstatement only within three years of termination. The dismissal took effect on 19th February 2014 and judgment was delivered in February 2020, so the remedy had lapsed.
Legal principles established
#- A suspension letter inviting an employee to a disciplinary hearing must state the charges to be answered and inform the employee of the right to be accompanied, as required under Section 41 of the Employment Act, failing which the dismissal is procedurally unfair
- Summary dismissal requires both substantive and procedural fairness on the part of the employer
Court orders
#- 1.Award of one month's salary in lieu of notice of Kshs.55,150
- 2.Award of 12 months' salary as compensation for unfair termination in the sum of Kshs.661,800
- 3.Respondent to pay the Claimant's costs of the suit
- 4.Interest to accrue from the date of judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court under Article 162(2) of the Constitution (not expressly cited; claim filed under the Employment Act)
Relief refused
#Reinstatement to service
The remedy of reinstatement is time-barred, having been sought more than three years after dismissal
Terminal benefits for alleged unlawful termination of the permanent contract on 29th August 2013
The court found no unlawful termination of the permanent contract and terminal dues were paid (applied to offset the Claimant's loan); no award made on this head
General damages for unlawful dismissal
Not awarded; compensation under section 49 of the Employment Act was granted instead
Costs
The respondent will pay the claimant's costs; interest shall accrue from date of judgment
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.
From the foregoing, the summary dismissal of the claimant was procedurally unfair.
the letter of suspension which also invited the claimant for disciplinary hearing did not state the charges he was expected to respond to at the disciplinary hearing or inform him of the right to be accompanied by a fellow colleague of his choice to the disciplinary hearing as required under Section 41 of the Employment Act.
It is for the above reasons, which I have considered together with all the other reasons under Section 49(4) of the Employment Act, that I award the claimant 12 months salary as compensation in the sum of Kshs.661,800.
The claimant is entitled to one month’s salary in lieu of notice which I award him at Kshs.55,150.
The respondent will also pay the claimant’s costs and interest shall accrue from date of judgment.
Issues in the judgment
#The judgment's final orders are stated only within the 'Remedies' narrative; there is no formal 'DISPOSITION' or numbered order section, and specific monetary heads such as accrued leave days and unpaid February wages claimed in submissions are neither expressly awarded nor expressly refused
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Odongo Owando v Marie Stopes Kenya [2020] KEELRC 1700 (KLR)", Case Analysis (2020). Statement of Claim dated 15th May 2014, filed 29th May 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1700/eng@2020-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.