Peter Asuka v Mutungati Farmers Co-operative Society [2015] KEELRC 112 (KLR)
The bottom line
#A Kenyan court upheld dismissal of a worker who deserted his job, ruling money claims were filed too late and must be raised within 12 months.
What this practically means
#Executive summary
#Key legal issues
#Effective date of termination
The effective date of separation was 30 September 2012, not January 2013 as pleaded by the Claimant
The Respondent produced ultimatums dated 1 and 15 October 2012 and a dismissal letter dated 30 October 2012. The Claimant's wife testified he was doing odd jobs from around September/October 2012, and he never sought wages after October 2012, undermining his claim that he served until January 2013.
Procedural fairness of the dismissal
The dismissal was procedurally fair; the show cause notices were delivered to the Claimant's wife and he failed to respond
The Respondent's Chairman and Manager testified that the show cause letters were delivered to the Claimant's wife who signed a delivery book produced in evidence. The delivery book showed no tampering and legal action was not then contemplated, so the court found it more probable that the notices were delivered.
Substantive fairness of the dismissal
Desertion was proved as a valid and fair reason for dismissal
The genuineness of the show cause letters was not challenged; only delivery was disputed. The court found the Respondent's version more consistent with the timing and circumstances, and that the Claimant, having failed to turn up for work, was repudiating the contract in breach of a fundamental obligation despite reasonable attempts by the Respondent.
Underpayments
No finding of underpayment could be made due to casual pleadings and testimony, and the claim was statute-barred
The Claimant cited only Legal Notice No. 64 of 2011, applicable from 1 May 2011 to 30 April 2012, yet claimed underpayments from 2003 to 2013 without identifying the applicable Wages Orders. Further, underpayments being a continuing injury, section 90 of the Employment Act required commencement within 12 months, which was not done.
Overtime
The overtime claim failed for lack of sufficient evidence and limitation
The court took judicial notice that guards work in 2 shifts of 12 hours, but no evidence was led on which public holidays or rest days were involved or the computation formula. The heads of claim also constituted a continuing injury claimable within 12 months.
Injunctive relief over employer's housing
The injunction could not be granted as occupation depended on the ended employment relationship
Under section 31 of the Employment Act, occupation of the Respondent's property was contiguous with and dependent on employment. Once that relationship ended, the Claimant could only remain on the property with the Respondent's consent on agreed lease/rent terms.
Legal principles established
#- An employee given an opportunity to make representations before dismissal who fails to respond cannot impeach the dismissal for failure to follow fair procedure
- Desertion of employment is a valid and fair ground for dismissal where the employer makes reasonable attempts to have the employee explain his whereabouts or resume work
- Underpayments and overtime are continuing injuries which must be claimed within 12 months by virtue of section 90 of the Employment Act, 2007
- Underpayments must be pleaded with clarity, setting out the months, years and the relevant Wages Orders
- Occupation of employer's housing is contingent on the employment relationship under section 31 of the Employment Act; on termination the employee can only remain with the employer's consent
Court orders
#- 1.The Court finds and holds that the dismissal of the Claimant was procedurally and substantively fair
- 2.The Memorandum of Claim is dismissed
- 3.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over a claim of unfair termination, underpayments and other entitlements under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Boniface Muhatia v Uba Kenya Bank Limited [2021] KEELRC 2096 (KLR)[2021] KEELRC 2096 (KLR)24 Feb 2021
- Salesa Guyo Boru & 9 others v Jianxi Zhongmei Engineering Construction Company Limited [2019] KEELRC 1469 (KLR)[2019] KEELRC 1469 (KLR)4 Jun 2019applied
- Hussein Oshe Mude & 34 others v Jianxi Zhongmei Engineering Construction Company Limited [2019] KEELRC 1495 (KLR)[2019] KEELRC 1495 (KLR)3 Jun 2019
Cite this brief
#Cite this brief
Caselaw, "Peter Asuka v Mutungati Farmers Co-operative Society [2015] KEELRC 112 (KLR)", Case Analysis (2015). Cause No 287 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/112/eng@2015-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.