KBM v OSH Limited (Cause 2000 of 2017) [2022] KEELRC 13539 (KLR) (14 December 2022) (Judgment)

Key Facts

Issues

• Whether the Claimant is entitled to the reliefs sought, including declaration of unfair dismissal, payment of terminal benefits, compensatory damages, costs of the suit, and interest, based on the court's determination of the termination's validity.
• Whether the termination of the Claimant's employment by the Respondent was unfair and unlawful under the Employment Act, considering the lack of valid evidence, procedural irregularities, and failure to comply with fair disciplinary processes.

Holdings

• The court emphasized that the mandatory process under section 41 of the Employment Act was not followed, as the Claimant was not provided with necessary evidence and the complainant did not testify.
• The disciplinary process was vitiated by the denial of access to essential evidence (CCTV footage) and the absence of the complainant, SC, to defend her allegations, leading to an irredeemably unfair process.
• The court found that the Respondent had no demonstrable valid and fair reason to terminate the Claimant's employment, and the procedure employed was far from fair, rendering the termination unfair and unlawful.

Remedies

• The court ordered the Respondent to pay the costs associated with the legal proceedings.
• The court declared that the Claimant's summary dismissal from employment was unfair and unlawful, as the termination was found to be without valid and fair reason and not in accordance with fair procedure.
• The court awarded the Claimant one month's salary in lieu of notice, as the termination occurred without prior notice and was deemed unfair.
• The court directed payment of interest at the court's prescribed rate from the date of judgment until the full amount is paid.
• The court granted compensation equivalent to four months' salary, considering the Claimant's 3-year employment without prior misconduct and the employer's failure to prove fair termination.

Monetary Damages

Legal Principles

• The disciplinary process was deemed procedurally unfair due to the failure to provide the claimant with access to critical evidence (CCTV footage) and the absence of the complainant to testify. The court emphasized that disciplinary proceedings must ensure the employee's right to confront evidence and present a defense, aligning with principles of natural justice.
• The court held that the employer failed to prove the termination was fair and lawful under sections 43(1) and 45 of the Employment Act, which require the employer to demonstrate both a valid reason and procedural fairness. The absence of CCTV footage, lack of witness testimony, and unverified allegations against the claimant rendered the dismissal unjustified.

Precedent Name

• Kenya Union of Commercial Food & Allied Workers V Meru North Farmers Sacco Ltd
• Alphonce Maghanga Mwachanya V Operation 680 Ltd
• Naima Khamis V Oxford University Press (EA) Ltd
• Walter Ogal Anuro V Teachers Service Commission
• Samuel Kazungu Kambi V Nelly Ilongo & 2 others
• Boniface Musyoka Kyambo V DPL Festive Ltd
• Pius Isindu Machafu V Lavington Security Guards Ltd

Cited Statute

• Evidence Act, Cap 80
• Employment Act, 2007

Judge Name

Passage Text

• For the above-stated reasons, the court is satisfied that the Respondent has on a balance of probabilities failed to prove that it had a valid and fair reason to terminate the Claimant's employment.
• The courts are emphatic that for a termination of employment to pass muster, it must be substantively justifiable and procedurally fair.
• In the absence of the CCTV footage and direct evidence of what transpired on that night, the Respondent had no ground to found its decision to dismiss the Claimant summarily other than by conjecture.