A Nairobi court has awarded a lawyer Sh1 million after finding he was unfairly dismissed by his employer, Prof Tom Ojienda and Associates, over alleged drunkenness and sexual misconduct at the work place.
The Employment and Labour Relations Court ruled that the law firm failed to prove key accusations levelled against the lawyer, identified by the initials NG, and breached mandatory disciplinary procedures before firing him in September 2021.
The firm had accused NG of reporting to work drunk and late, leaving the office early, defrauding clients and bringing an unidentified woman to the office for intimacy.
It alleged that after the Covid-19 outbreak, NG routinely reported to work late, left the office as early as 2pm without explanation and at times arrived drunk before locking himself in his office to avoid interrogation. He was an associate advocate at the firm.
Prof Ojienda, a former chairperson of the Law Society of Kenya, currently serves as Kisumu County Senator.
The firm alleged that on February 10, 2021, the advocate “engaged in sexual activities and drinking alcohol” with a woman inside the office and left behind a used condom in the waiting lounge.
The law firm also claimed that NG had embarrassed it by ordering books worth Sh157,000 in its name for personal use and failing to pay for them.
Prof Ojienda further accused the advocate of receiving more than Sh2.3 million from a client, Lavington Security Limited, under the guise of collecting legal fees for the law firm.
Another allegation was that NG had misrepresented his academic and professional qualifications during recruitment, with the law firm claiming it later discovered he neither held a Master’s degree from the University of Nairobi nor had the level of legal experience stated in his job application.
However, the court found that the allegations relied on to dismiss the lawyer were either unsupported or improperly handled during the disciplinary process.
“Nothing was presented in evidence to show that the claimant, indeed, ordered for the books in issue in the respondent’s law firm’s name,” the judge ruled.
Kisumu Senator Tom Ojienda. A Nairobi court has awarded a lawyer Sh1 million after finding he was unfairly dismissed by his employer, Prof Tom Ojienda and Associates.
Photo credit: File | Nation Media Group
Prof Tom Ojienda and Associates had also argued that the bookseller posted offensive messages on X, formerly Twitter, claiming that the firm had ordered the books and failed to pay. This exposed the firm to public ridicule and embarrassment.
However, the court said the alleged offensive social media posts and reactions linked to the books dispute were never produced in evidence after claims that they had been deleted.
The court faulted the disciplinary process, saying the firm failed to prove that NG had received a show-cause letter before termination.
“The said show-cause letter was not shown to have been served on the claimant or to have been received by him,” the court ruled.
The court said disciplinary proceedings must meet strict procedural standards because they are effectively legal proceedings under the employment law.
“A show-cause letter must always be served on the accused employee, who must acknowledge receipt thereon,” the court said.
It added that disciplinary hearings must properly capture the employee’s representations and attendance through signed proceedings.
The court found that minutes produced by the law firm were only signed by Prof Ojienda and did not contain NG’s recorded defence.
“The respondent is not shown to have adhered to the mandatory procedure set out in Section 41 of the Employment Act,” the court ruled.
NG had sued the firm in 2023, claiming that he was employed as an associate advocate earning a monthly salary that later rose to Sh192,138.
He told the court he was never issued with a written employment contract, payslips or a hearing notice before dismissal.
The advocate claimed that the law firm had promised him annual salary increments of 20 per cent and commissions from legal briefs he handled.
He demanded more than Sh14 million, including compensation for unfair termination, unpaid commissions, underpayments and damages for alleged violation of constitutional rights.
The court, however, rejected most of the claims after finding that they were not supported by evidence.
It dismissed the claims for Sh9.75 million in commissions and Sh1.4 million in alleged salary underpayments.
The court also rejected the advocate’s bid for constitutional damages, ruling that employment disputes should be addressed under the Employment Act rather than through constitutional claims.
The court awarded him six months’ salary compensation amounting to Sh720,000, one month’s salary in lieu of notice and Sh252,000 for unpaid leave days.
Prof Ojienda had told the court he nonetheless paid the dismissed advocate Sh820,000 after termination as an ex-gratia payment because “times were hard then” and he had mentored him.
But the court ruled that the payment could not offset the final award because it was voluntarily made and not legally owed.
