Ooko v Quest Holdings Limited & another (Cause 321 of 2019) [2024] KEELRC 85 (KLR)
The bottom line
#A Kenyan court ruled the audit manager's dismissal unfair because the employer skipped show-cause letters, hearings and warnings, awarding about Kshs. 990,000.
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's contract was terminated in accordance with fair procedure
- 2.Whether termination was founded on fair and valid reasons
- 3.Whether the Claimant's prayers are merited, including which prayers are duplicated or lack foundation
- 4.Whether the 2nd Respondent (CEO) is properly joined as a party
Key legal issues
#Procedural fairness of termination
Termination was procedurally unfair - no show cause letter, no disciplinary hearing, no warnings, own policy not followed
The CEO conceded in evidence that no notice to show cause was issued, no disciplinary hearing was convened, no charges communicated, and the company's disciplinary procedure was not followed. Late reporting required a graduated warning process which was not invoked. The failed appeal through lawyers ought to have been considered. These departures conflicted with Sections 41 and 45 of the Employment Act.
Validity of reasons for termination
No valid reasons established - allegations of poor performance and lateness not proved
The letter of termination gave no reasons beyond citing clause 11. The biometric report on lateness was not exhibited; the appraisal form was unsigned; the Claimant was never placed on PIP; and the CEO failed to approve audit work plans, disabling the Claimant from producing audit reports. Allegations were never specifically put to the Claimant.
Joinder of the CEO
The 2nd Respondent was improperly joined as he was an Employee, not the Employer
The CEO had no contract with the Claimant; the primary employer (the 1st Respondent company) was never in dispute. The broad statutory definition of employer guards against concealment of the actual employer, not joinder of every supervisor. The CEO's value was as a witness. The Court followed the Akinyi v KEMRI decision.
Remedies for unfair termination
Compensation of 5 ½ months' gross salary (Kshs. 990,000) granted; severance, duplicated damages and terminal dues refused
The Claimant served 3 years and did not cause or contribute to termination, but mitigation evidence was unclear. The duplicated compensation prayers were consolidated into one Section 49 inquiry. Terminal benefits of Kshs. 263,283 and the certificate of service were already on offer, so no further order was needed.
Legal principles established
#- Sections 41 and 45 of the Employment Act are mandatory; prescribed procedure cannot be disregarded even where trust and confidence has broken down or where procedure would not change the outcome
- An appeal through an Employee's Lawyers meets the requirement of a written appeal and must be considered
- UK Employment Appeals Tribunal decisions are not judicial authorities on Kenyan employment law
- The broad definition of 'employer' in section 2 of the Employment Act was not intended to allow employees to join CEOs and supervisors where the primary employer is identifiable
Court orders
#- 1.The Claim against the 2nd Respondent is declined with no order on the costs
- 2.Declaration that termination was unfair
- 3.The 1st Respondent shall pay to the Claimant compensation equivalent of the Claimant's 5 ½ months' gross salary at Kshs. 990,000
- 4.No order on the costs
- 5.Interest allowed at court rate, from the date of Judgment, till payment is made in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 49 of the Employment Act and Section 12 of the Employment and Labour Relations Court Act (first-instance employment claim)
Relief refused
#Claim against the 2nd Respondent (CEO)
The CEO was an Employee, not the Employer, and cannot shoulder employment liability where the primary Employer is clearly identifiable
Severance pay of Kshs. 166,000
No redundancy was pleaded or proved
Terminal benefits (salary for days worked, notice pay, leave days, certificate of service)
Already offered by the 1st Respondent through a cheque for Kshs. 263,283; Claimant at liberty to collect
Duplicated prayers for damages/loss of earnings over 29 years and compensation for reputational damage
Consolidated into a single compensation inquiry under Section 49; only one act of termination
Costs
No order on the costs (each party to bear own costs); claim against the 2nd Respondent also rejected with no order on the costs
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.
Our Employment Act 2007, as upheld in a catena of decisions of our esteemed Superior Courts of record, demands procedural justice in termination of employment. The provisions of Sections 41 and 45 of the Act are mandatory.
The Court does not agree that prescribed procedure, statutory and internal, can be disregarded where trust and confidence has broken down; and where adherence to prescribed procedure would not change the decision of the Employer.
The UK Employment Appeals Tribunal does not administer the Employment Act 2007. Its decisions are not judicial authorities, on Kenyan employment law.
The 1st Respondent ought to have received the appeal and considered it, in accordance with the disciplinary procedure. There was no bar to the appeal being submitted through the Claimant's Lawyers.
It is declared that termination was unfair.
The 1st Respondent shall pay to the Claimant compensation equivalent of the Claimant's 5 ½ months' gross salary at Kshs. 990,000.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ooko v Quest Holdings Limited & another (Cause 321 of 2019) [2024] KEELRC 85 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/85/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.