Ochieng v Kenya Ports Authority (Cause E075 of 2024) [2025] KEELRC 1227 (KLR)
The bottom line
#A Mombasa court awarded a sacked employee notice pay only because the employer skipped the mandatory hearing, but gave zero compensation due to his misconduct.
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 termination of the claimant's employment on 23 March 2022 was fair and lawful
- 2.Whether the respondent complied with the procedural requirements of Section 41(2) of the Employment Act
- 3.Whether the claimant is entitled to notice pay, salary for March 2022, 12 months' compensation, pay until retirement, reinstatement and a certificate of service
- 4.What deductions, if any, are permissible for unauthorised absence from work
Key legal issues
#Procedural fairness in termination under Section 41(2) of the Employment Act
The respondent did not conduct a shop-floor disciplinary hearing due to the claimant's habitual absenteeism, but the court found the employer's efforts short of full compliance, entitling the claimant to notice pay
The court acknowledged that Section 41(2) requirements are mandatory, requiring the employee to be summoned to a hearing. The respondent's witness conceded no shop-floor hearing was held. However, the claimant's conduct frustrated the process. The court balanced this: the termination was procedurally flawed, warranting notice pay, but the claimant's gross misconduct of unauthorised absence meant no further compensation was merited.
Whether unauthorised absence amounted to gross misconduct justifying forfeiture of employment
Yes - absence from work without authorisation for more than 10 days is gross misconduct under Section 44(4)(a) and justifies summary dismissal under Section 44(3)
The court found the claimant admitted extending his leave without authorisation, suffering from alcohol disorder. The respondent proved multiple warnings and rehabilitation efforts which the claimant defaulted on. The court held the substantive reason for termination was valid, but procedural lapses (failure to hold a hearing) entitled the claimant to notice pay only.
Compensation for unfair termination under Section 45(5)
Zero compensation awarded despite procedural unfairness, given the claimant's documented gross misconduct
Under Section 45(5) of the Employment Act, the court considers the work record. The claimant had numerous warning letters from 2013 to 2024 for absenteeism, defaulted on rehabilitation, and admitted unauthorised absence. The court held that awarding compensation would reward gross misconduct, so zero months' pay was granted notwithstanding the procedural defect in the termination.
Deduction for days absent under Section 19(1)(c) of the Employment Act
A deduction of Ksh. 43,388 is permissible for the 10 days the claimant was absent from work
The court invoked Section 19(1)(c) of the Employment Act, which allows deduction for each day absent from work. Given the finding that the claimant was absent for more than 10 days, the respondent was entitled to deduct the equivalent of 10 days' pay (Ksh. 43,388) from any amounts payable to the claimant.
Legal principles established
#- Absence from work without permission from the employer constitutes gross misconduct under Section 44(4)(a) of the Employment Act and justifies summary dismissal under Section 44(3)
- The procedural requirements of Section 41(2) of the Employment Act are mandatory; where due process is not followed, termination is unlawful and unfair even where the employee's conduct justifies dismissal
- Where the employee cannot be brought to account despite the employer's efforts, a notice of summary dismissal may be issued and served on the Labour Officer under Section 18(5)(b)
Court orders
#- 1.Notice pay awarded at the last gross salary of Ksh. 130,164
- 2.Salary for 23 days worked in March 2022 awarded at Ksh. 99,792.40, if not already paid
- 3.Deduction of Ksh. 43,388 permissible for 10 days absent from work
- 4.Zero (0) months' compensation for unfair termination
- 5.Claims for pay until retirement and reinstatement declined
- 6.Certificate of service to be issued upon clearance
- 7.Each party to bear its own costs, save for the awarded amounts
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 (first-instance employment claim); no specific constitutional provision cited
Relief refused
#Damages for wrongful termination at 12 months' pay (Ksh. 3,186,748.68)
Allocating compensation in the face of the documented instances of misconduct would reward gross misconduct; zero compensation awarded
Payment until retirement (Ksh. 7,876,871.70) and reinstatement
The claimant failed to mitigate and his repeated unauthorised absences and default on rehabilitation made these remedies inapplicable
Costs of the suit
Each party to meet its own costs, save for the awarded amounts
Costs
Save for notice pay at Ksh. 130,162 and pay for 23 days at Ksh. 99,792.40 (if not paid), less Ksh. 43,388 for 10 days absent, each party should meet its 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.
Absence from work without permission from the employer is defined as gross misconduct under Section 44(4) (a) of the Employment Act.
The provisions of Section 41(2) are mandatory.
Where due process of the law is not adhered to, employment termination is unlawful and unfair.
Allocating compensation in the face of these documented instances would reward gross misconduct. Zero (0) compensation is awarded.
Under Section 19 (1) (c) of the Employment Act, a deduction is allowed for each day absent from work.
On costs, save for notice pay at Ksh. 130,162 and pay for 23 days at Ksh. 99,792.40 if this has not been paid, less Ksh. 43,388 for 10 days absent, each party should meet its costs.
Issues in the judgment
#Discrepancy in monthly salary figures between the claim and the respondent's case; the court awarded notice pay of Ksh. 130,164 in the analysis but Ksh. 130,162 in the final orders
Discrepancy in the salary figure pleaded: the claim states Ksh. 262,562.39 in one place and Ksh. 262,572.37 in the respondent's account
Internal date inconsistency: the judgment records the claimant's appeal rejection as 31 January 2024, yet lists a warning letter dated 11 February 2024, and the termination is dated 23 March 2022 while the appeal response is dated 2024, suggesting the appeal post-dates the termination by two years
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochieng v Kenya Ports Authority (Cause E075 of 2024) [2025] KEELRC 1227 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1227/eng@2025-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.