Alfred Mmbolo Mfoyongo v Karim Rajan t/a Smokeys Restaurant [2014] KEELRC 600 (KLR)
The bottom line
#Kenya's Industrial Court dismissed a cook's unfair dismissal claim because the employer's evidence that he deserted the job was more convincing.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's employment was wrongfully, unfairly and illegally terminated
The claim was not one of unfair dismissal; the respondent's evidence of desertion and taking up other employment was preferred on a balance of probabilities.
The court applied Section 45 of the Employment Act, 2007, which requires an employer to prove a valid and fair reason and fair procedure. The claimant asserted wrongful termination on 22nd January 2012; the respondent asserted desertion on the same date and subsequent employment elsewhere. Weighing the two versions on a balance of probabilities, the court found the respondent's account more convincing and found no nexus between the facts and Section 45 establishing unfair dismissal.
Whether the claimant is entitled to the relief sought
No relief was granted as the claim was dismissed in its entirety.
Having found no unfair termination, the claims for salary in lieu of notice, leave for three years and house allowance for three years necessarily fell away. The court answered all three issues together, dismissing the claim with no order as to costs.
Who bears the costs of the case
No order as to costs was made.
Although the respondent sought dismissal with costs, the court in its discretion made no order as to costs upon dismissing the claim.
Legal principles established
#- Where an employer's evidence that an employee deserted employment is more convincing on a balance of probabilities, no case of unfair termination under Section 45 of the Employment Act is established.
Court orders
#- 1.The claim is dismissed with no order as to costs
- Jurisdiction invoked
- Industrial Court of Kenya jurisdiction under the Labour Relations Act over employment and labour relations disputes (Cause No. 251 of 2013)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alfred Mmbolo Mfoyongo v Karim Rajan t/a Smokeys Restaurant [2014] KEELRC 600 (KLR)", Case Analysis (2014). Cause No. 251 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/600/eng@2014-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.