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Court of AppealDismissedCivil Appeal 136 of 2019· [2024] KECA 1863 (KLR)

Njiru v Mwea Rice Millers Limited

Court of Appeal
20 December 2024
WKW KaranjaJMJamila MohammedLKLK Kimaru
2,333 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that employees who abandon work without explaining their absence cannot win unfair dismissal claims.

What this practically means

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Executive summary

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The appellant, employed by the respondent as a cleaner from June 2012, claimed his employment was unlawfully terminated on 1st September 2016, alleging breach of various Employment Act provisions, underpayment, and unpaid dues, and sought Kshs.180,202/- plus declaratory and other relief. The ELRC (Nzioki Wa Makau, J.) dismissed his claim on 11th March 2019, finding his absence from work unexplained and his hospitalisation claim untruthful. On appeal, the appellant, acting in person and unopposed, raised grounds including the trial judge's failure to call for Wang'uru court records and failure to consider his illness and the medical report. The Court of Appeal, sitting at Nyeri (Karanja, Mohammed and Kimaru, JJA), rehearsed the first appellate duty under Rule 31(1) of its Rules and Selle v Association of Motorboat Co., while acknowledging it would not disturb findings of fact absent misapprehension or wrong principle (Peters v Sunday Post). The court reaffirmed the statutory allocation of burden: the employee must prove unfair termination, while the employer must justify the grounds under Sections 43, 45 and 47(5) and follow the Section 41 notification-and-hearing process. On the facts, the appellant conceded absence, admitted attending a land dispute case at Wang'uru, never called the doctor to authenticate his medical report, and his family never alerted the employer. The court found deliberate desertion, held the respondent discharged its burden under Section 47(5), and noted the appellant had accepted a cheque of Kshs.80,802/- in full settlement computed by the Labour Office. The appeal was dismissed with no orders as to costs because the respondent did not participate.

Key legal issues

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01

Whether the appellant was unfairly and unlawfully terminated

Holding

The claim fails; the appellant deserted employment and failed to prove unfair termination, while the respondent discharged its statutory burden.

Reasoning

The appellant conceded absence from work and admitted attending a land dispute case at Wang'uru. His hospitalisation claim was unsupported - the doctor who wrote the medical report was not called, and family members never alerted the employer. The employer was under a mandatory duty under Section 41 to notify and hear the employee before termination, but on the facts the absence amounted to deliberate desertion, justifying the ELRC's finding.

p. 4
02

Whether the appellant is entitled to the balance of his dues

Holding

No; the respondent settled all dues by a cheque of Kshs.80,802/- which the appellant acknowledged and accepted.

Reasoning

It was not in contention that the Labour Office computed the sums due, the respondent issued a cheque for Kshs.80,802/-, and the appellant accepted the payment. Having failed on the unfair termination claim, no further payment could be ordered.

p. 5

Legal principles established

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  • For claims of unfair dismissal, the burden of proving unfairness rests with the employee, while the employer bears the burden of justifying the grounds, validity and fairness of the dismissal and of following the Section 41 procedure.
  • An appellate court will not interfere with a trial court's finding of fact unless it is based on no evidence, a misapprehension of the evidence, or wrong principles.

Court orders

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  1. 1.The appeal is dismissed with no orders as to costs

Authorities

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Legislation

  • Employment ActSections 41(1), 44(4), 43, 45(2)(a), 45(4)(b), 35(1)(b) & (c), 36, 27, 47(5)
  • Labour Institutions ActSection 15(c)
  • Legal Notice No. 197 of 2013
  • Court of Appeal Rules, 2022Rule 31(1)

Cases cited (2)

  • Selle vs Association of Motorboat Co. Kenya & Others
    [1968] EA 123

    Duty of a first appellate court to re-appraise evidence and draw inferences of fact

  • Peters vs Sunday Post Limited
    (1958) EA 424

    Limits on appellate interference with trial court findings of fact

On appeal from
Employment & Labour Relations Court at Nyeri
ELRC No. 263 of 2017
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Rules, 2022 (Rule 31(1)), appeal from the ELRC

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, "Njiru v Mwea Rice Millers Limited", Case Analysis (2024). Civil Appeal 136 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1863/eng@2024-12-20

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