Clifford Ochieng Abila v National Cereals And Produce Board [2022] KEELRC 587 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU

CAUSE NO. 329 OF 2016

CLIFFORD OCHIENG ABILA...............................................................................CLAIMANT

VERSUS

NATIONAL CEREALS AND PRODUCE BOARD......................................RESPONFDENT

JUDGMENT

1. Clifford Ochieng Abila (the Claimant) sued the National Cereals Produce Board (the Respondent) on 14 November 2016 alleging unfair termination of employment.

2.   The Respondent filed a Response on 19 January 2017.

3. When the Cause came up for hearing on 30 July 2019, the Respondent secured an adjournment to enable it file documents and witness statements.

4.   The Court directed it to file and serve the documents within 7-days. The Respondent did not comply with the order.

5.   When the Cause next came up for hearing on 23 January 2020, the Court declined to allow introduction of documents by the Respondent since about 8-months had lapsed since it got leave to file and serve its documents.

6.    The hearing commenced and the Claimant testified.

7.   On 3 July 2020, the Respondent filed an application seeking review of the order declining to accept its documents.

8.   The Court considered the motion and, in a Ruling, delivered on 11 February 2021, the application was dismissed.

9.   When the Cause came up on 30 November 2021 for the taking of the Respondent’s case, it opted to close its case without leading any evidence. The reason given was that the Court had declined its application to file documents/witness statements on 11 February 2021.

10.   The Respondent’s case was thus closed and the parties directed to file and exchange submissions.

11.   The Claimant filed his submissions on 29 December 2021, while the Respondent filed its submissions on 26 January 2022.

12.  The Court has considered the pleadings, evidence, and submissions and identified the Issues for determination as examined hereunder.

Unfair termination of employmentProcedural fairness

13.   The Respondent issued a show-cause to the Claimant on 4 November 2015. The notice requested him to respond within 72 hours.

14.  The Claimant responded on 9 November 2015.

15.  On 16 November 2015, the Respondent suspended the Claimant to enable investigations to be completed and on 19 November 2015, it invited him to appear for an oral hearing on 24 November 2015.

16.   The invitation advised the Claimant of the right to be accompanied during the hearing.

17.  The Claimant attended the hearing and was allowed to make representations and on 9 June 2016 was notified of dismissal.

18.  The Claimant appealed on 16 August 2016, and he sent a reminder on the appeal on 27 September 2016.

19.  Although there is no record that the Respondent considered the appeal, the Court is satisfied that the Respondent was in substantial compliance with the statutory requirements of procedural fairness as envisaged under sections 35(1) and 41 of the Employment Act, 2007.

Substantive fairness

20.  Sections 43 and 45 of the Employment Act, 2007 have imposed a burden upon employers to not only prove but prove as valid and fair, the reasons for dismissing an employee from work.

21.  The Respondent did not lead any evidence (reasons already given above) to discharge the burden placed on it and the only option for the Court is to conclude that the dismissal of the Claimant was not for valid or fair reasons.

Compensation

22.  The Claimant served the Respondent for about 8-years.

23.  The Respondent was locked out of leading evidence because of its casual approach to the litigation and the Court did not have the benefit of hearing its defence.

24.  In consideration of the above, the Court is of the view that the equivalent of 8-months gross salary as compensation would be appropriate (Claimant’s gross salary in September 2015 was Kshs 41,390/-).

Conclusion and Orders

25.   The Court finds and declares that although the Respondent was in substantial compliance with the requirements of procedural fairness, it did not discharge the burden imposed on it by sections 43 and 45 of the Employment Act, 2007, leading to the conclusion that the dismissal of the Claimant was not for valid or fair reasons.

26.  The Claimant is awarded:

(i) Compensation                        Kshs 331,120/-

27.  The Claimant to have costs on half-scale.

DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN MOMBASA ON THIS 2ND DAY OF MARCH 2022.

RADIDO STEPHEN

JUDGE

APPEARANCES

FOR CLAIMANT OTIENO C.O. OYAYO & CO. ADVOCATES

FOR RESPONDENT J.O. JUMA & CO. ADVOCATES

COURT ASSISTANT CHRISPO AURA