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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 208 of 2017

Amos Otieno Owando v Eurocraft Agencies Limited [2022] KEELRC 924 (KLR)

Employment and Labour Relations Court
28 January 2022
3,434 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that even serious misconduct suspicions cannot justify firing a worker without first giving them a hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a porter/loader from 10th October 2014, was summarily dismissed on 25th May 2016 following allegations that he was caught unzipping customers' bags aboard aircraft FFA KQ 416 with intent to pilfer. He sued for compensatory damages, notice pay, service pay and unpaid leave, contending the allegations were false and that he was never subjected to a disciplinary process. The respondent defended the dismissal as lawful gross misconduct under section 44 of the Employment Act, relying on eye-witness statements and instructions from Kenya Airways, a major client, to remove him. The court framed three issues: substantive justification, procedural fairness, and entitlement to reliefs. On substance, applying Kenya Revenue Authority v Reuwel Waithaka Gitahi, it held the standard is balance of probability and the employer need only show genuine belief in the reasons; the eye-witness accounts and the breach of trust inherent in the claimant's role constituted valid and fair grounds. On procedure, however, the court held section 41 of the Act is mandatory and cannot be waived by an employer electing summary dismissal; the confiscated airport pass did not excuse the absence of a hearing since a visitor's pass could have been arranged. The dismissal was therefore unlawful and unprocedural. The court awarded one month's notice pay (Kshs 13,317) and compensation of four months' gross salary (Kshs 53,268), totalling Kshs 66,585, with interest, and declined service pay because the claimant contributed to the NSSF. The respondent was ordered to bear the costs of the suit. Judgment dated and delivered at Nairobi on 28th January 2022 by Stella Rutto, J.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent had justifiable reasons to terminate the employment of the claimant
  2. 2.Whether the claimant was entitled to procedural fairness
  3. 3.Is the claimant entitled to the reliefs sought

Key legal issues

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01

Whether the respondent had justifiable reasons to terminate the claimant's employment

Holding

Yes - the reasons were valid and fair

Reasoning

The dismissal was grounded on section 44(4)(g), suspicion of a criminal offence against the employer. Applying Kenya Revenue Authority v Reuwel Waithaka Gitahi, the standard is balance of probability and the employer need only show it genuinely believed the reasons existed. Eye-witness statements and the confiscation of the claimant's airport pass gave the employer reasonable and sufficient grounds. Trust and honesty were essential to the claimant's role as a loader handling customers' belongings.

p. 3
02

Whether the claimant was entitled to procedural fairness

Holding

No hearing was accorded; the dismissal was unlawful and unprocedural

Reasoning

Section 41(2) of the Employment Act is mandatory: an employer must hear and consider representations before summary dismissal. The respondent admitted no hearing took place and argued the claimant's confiscated access permit made one impossible. The court rejected this, holding a visitor's pass could have facilitated a hearing. The dismissal therefore fell outside legal parameters.

p. 4
03

Entitlement to reliefs

Holding

Notice pay and four months' compensation awarded; service pay declined

Reasoning

Following the finding of procedural unfairness, one month's notice pay was awarded under section 35(1)(c) and compensatory damages of four months' gross salary. The service pay claim failed because the claimant contributed to the NSSF, an exclusion under section 35(6)(d).

p. 5

Legal principles established

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  • An employer need only prove, on a balance of probability, that it genuinely believed the reasons for dismissal existed at the time, particularly where dismissal is based on suspicion of criminal conduct under section 44(4)(g)
  • Section 41 of the Employment Act sets mandatory minimum procedural standards that cannot be waived by an employer electing summary dismissal under section 44
  • Confiscation of an employee's airport access permit does not excuse the employer's failure to accord a hearing

Court orders

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  1. 1.Judgment entered in favour of the claimant against the respondent in the sum of Kshs 13,317.00 being one month's salary in lieu of notice and Kshs 53,268.00 being compensation equivalent to 4 months' gross salary, totalling Kshs 66,585.00
  2. 2.The award to attract interest at court rates from the date of Judgment until payment in full
  3. 3.The respondent to bear the costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (implied from the court's jurisdiction over the employment claim; the judgment itself invokes Articles 159(2)(d) and 48 of the Constitution for the delivery mode)

Relief refused

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Service pay of Kshs 13,317

The claimant was contributing to the NSSF and thus fell within the exclusions under section 35(6)(d) of the Employment Act

p. 5

Compensatory damages of 12 months' gross salary (Kshs 207,950.40)

The court awarded only 4 months' gross salary as compensation for the procedurally unfair dismissal

p. 5

Costs

The respondent shall bear the costs of the suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the final analysis, I enter Judgment in favour of the claimant against the respondent in the following terms
p. 5final orders
One month’s salary in lieu of notice 13,317.00 Compensation equivalent to 4 months’ gross salary 53,268.00 Total 66,585.00
p. 5quantum of award
The respondent shall also bear the costs of the suit
p. 5costs
It is therefore not optional for an employer to cherry-pick the statutory provisions and elect whether or not to comply with the provisions of section 41 of the Act
p. 4mandatory procedural fairness
The award, shall attract interest at court rates from the date of Judgment until payment in full
p. 5interest

Issues in the judgment

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minor

The letter of dismissal is quoted as invoking 'section 44 (g)' of the Employment Act, 2007, while the court analyses the ground under section 44(4)(g); the dismissal letter's citation is imprecise

minor

The respondent's name is misprinted in the cause heading as 'RESPODENNT'

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, "Amos Otieno Owando v Eurocraft Agencies Limited [2022] KEELRC 924 (KLR)", Case Analysis (2022). Cause No 208 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/924/eng@2022-01-28

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