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ELRCPartially AllowedNot stated in the judgment (original memorandum of claim dated 17th June 2014)

Ombajo v Institute of Certified Public Accounts of Kenya (ICPAK) (Employment and Labour Relations Cause 224 of 2014) [2024] KEELRC 1865 (KLR)

Employment and Labour Relations Court
16 July 2024
2,295 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court awarded a sacked manager Kshs. 5.4 million after finding his disciplinary hearing on one day's notice was unfair.

What this practically means

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Executive summary

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This Employment and Labour Relations Court ruling by Hellen Wasilwa, J, delivered virtually on 16th July 2024, dealt solely with the assessment of damages for unfair termination, on remittal from the Court of Appeal. The claimant, employed on 1st June 2009 as Chief Manager, Corporate Support Services, was terminated on 5th March 2014 following a disciplinary process convened on one day's notice. The trial court (Radido, J) had dismissed the claim and allowed the respondent's counterclaim; the Court of Appeal, by judgment of 2nd December 2022, allowed the appeal, holding the termination procedurally unfair because the short notice reduced the disciplinary hearing to a formality, and referred the matter back for assessment of damages. The claimant sought the full panoply of reliefs including twelve months' compensation, reinstatement (which he conceded was impracticable), service pay, leave pay, five days' March 2014 salary, three months' notice pay and a certificate of service. The respondent proposed two months' compensation. The court awarded 52 leave days (Kshs. 1,030,250), five days' March 2014 salary (Kshs. 99,062.5), eight months' salary as compensation (Kshs. 4,755,000) and one month's notice pay (Kshs. 594,375), and ordered issuance of a certificate of service. After deducting the counterclaim of Kshs. 1,080,000 and statutory deductions, the balance payable is Kshs. 5,398,687.5. The respondent was ordered to pay costs of the suit and appeal with interest from the date of judgment. Service pay, general and exemplary damages were not awarded.

Questions the Court framed

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

  1. 1.Assessment of damages for unfair termination following the Court of Appeal's finding that the termination was procedurally unfair

Key legal issues

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01

Quantum of compensation for unfair termination

Holding

Eight months' salary awarded as compensation, taking into account the procedural unfairness established by the Court of Appeal, between the Claimant's claim of twelve months and the Respondent's offer of two months.

Reasoning

The Court of Appeal had conclusively found the disciplinary process unfair because the Claimant was given inadequate notice of the disciplinary hearing. The court exercised its discretion under section 49 of the Employment Act to fix compensation at eight months' salary, midway between the parties' positions, rather than the maximum twelve months sought or the two months offered by the Respondent.

p. 5
02

Admitted dues: leave pay and March 2014 salary

Holding

52 leave days and 5 days' March 2014 salary awarded as admitted by the Respondent.

Reasoning

The Respondent had refused to pay leave dues on the ground that the Claimant had not cleared, a justification rejected at trial. The leave dues (52 days) and the March 2014 salary for 5 days were admitted by the Respondent, so the court awarded both on computation against the monthly salary of Kshs. 594,375.

p. 5
03

Notice pay and certificate of service

Holding

One month's salary in lieu of notice awarded (rather than three months claimed) and a certificate of service ordered.

Reasoning

Although the Claimant claimed three months' notice pay under the Revised Terms and Conditions of Service, the court awarded one month's salary in lieu of notice. The court also ordered issuance of a certificate of service, consistent with the statutory obligation relied on by the Claimant.

p. 5

Legal principles established

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  • An employee found to have been unfairly terminated through a procedurally defective disciplinary process is entitled to compensation under section 49 of the Employment Act, quantified at the court's discretion.

Court orders

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  1. 1.Payment of 52 leave days at Kshs. 1,030,250
  2. 2.Payment of March 2014 salary for 5 days at Kshs. 99,062.5
  3. 3.Compensation for unfair termination of 8 months' salary at Kshs. 4,755,000
  4. 4.One month's salary in lieu of notice at Kshs. 594,375
  5. 5.Set-off of the counterclaim of Kshs. 1,080,000 awarded to the Respondent, leaving a balance of Kshs. 5,398,687.5 less statutory deductions
  6. 6.Issuance of a Certificate of Service to the Claimant
  7. 7.Respondent to pay costs of the suit and of the appeal plus interest from the date of judgment

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Jurisdiction restored on remittal by the Court of Appeal under the Employment Act (section 49) for assessment of damages for unfair termination

Relief refused

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Reinstatement or redeployment

Claimant himself conceded impracticability given the long pendency of the suit and appeal

p. 3

Service pay of Kshs. 2,917,875 (one month's salary per year worked)

Not addressed or awarded in the court's final orders despite being claimed

General and exemplary damages

Not awarded in the final orders

Three months' salary in lieu of notice

Court awarded only one month's salary in lieu of notice instead of the three months claimed

p. 5

Costs

The Respondents will pay costs of this suit and of the appeal plus interest with effect from the date of this judgment.

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.

I therefore allow this prayer for payment of 52 leave days being 52/30 x 594,375 = 1,030,250/=
p. 5Leave pay award
given the unlawful termination meted against the Claimant in the disciplinary process as established by the Court of Appeal, I find he is entitled to compensation which I award at 8 months’ salary = 8 x 594,375 = 4,755,000/=
p. 5Compensation for unfair termination
I also award Claimant 1 months’ salary in lieu of notice = 1 x 594,375 = 594,375/=
p. 5Notice pay
The Respondents will pay costs of this suit and of the appeal plus interest with efiect from the date of this judgment.
p. 5Final orders - costs and interest

Issues in the judgment

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material

The counterclaim is stated as Kshs. 1,165,000 in paragraph 2, but the set-off in the final computations uses Kshs. 1,080,000 attributed to paragraph 72 of the earlier judgment.

minor

The claimant's arithmetic for service pay (594,375 x 5 = 2,917,875) is internally inconsistent on the face of the judgment.

minor

The memorandum of claim lists salary for 5 days worked in March 2013 while the judgment and pleadings elsewhere refer to March 2014.

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, "Ombajo v Institute of Certified Public Accounts of Kenya (ICPAK) (Employment and Labour Relations Cause 224 of 2014) [2024] KEELRC 1865 (KLR)", Case Analysis (2024). Not stated in the judgment (original memorandum of claim dated 17th June 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1865/eng@2024-07-16

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