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ELRCPartially AllowedCause No. 517 of 2014 (formerly Milimani CMCC No. 7094 of 2005)· [2015] KEELRC 211 (KLR)

Thecla Mokeira Onyancha v Kenya Wildlife Services [2015] KEELRC 211 (KLR)

Employment and Labour Relations Court of Kenya
20 November 2015
MNMathews N. Nduma
2,701 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that being sick does not excuse an employee from formally asking for time off — absence without permission counts as desertion.

What this practically means

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Executive summary

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The claimant, formerly employed by Kenya Wildlife Services as a radio operator from 1990, was dismissed by letter dated 28th February 2000 for prolonged absenteeism without permission. She had suffered hypertension from December 1997, was hospitalized at Kenyatta National Hospital, and had in January 1999 requested retirement on medical grounds, a request never actioned. On appeal, the Disciplinary Appeals Advisory Board commuted the dismissal to normal termination effective 1st July 1998, preserving her pension and terminal benefits. The suit, originally filed as Milimani CMCC No. 7094 of 2005 and transferred to this Court as Cause No. 517 of 2014, sought a declaration that the termination was unlawful, ten months' unpaid salary, notice pay, accrued leave, pension contributions of Kshs 644,739 and compound interest. The respondent conceded notice pay of Kshs 11,515 and three days' leave pay of Kshs 1,570.20, admitted withholding two months' salary, and maintained the pension contribution had been paid in full by cheque of 26th February 2000. The court framed three issues: valid reason, fair procedure, and entitlement to further benefits. It held the claimant's post-hospital absence without formal permission amounted to desertion under section 44(4)(a) of the Employment Act, giving a valid reason for termination; the disciplinary process and appeal satisfied fair procedure; and the claimant was entitled only to Kshs 36,115 (two months' arrears, notice pay, and three days' leave pay), payable with court-rate interest from filing. The claim for compensation was dismissed, and the partly successful claimant received the costs of the suit. Judgment was delivered at Nairobi on 20th November 2015 by Mathews N. Nduma, Principal Judge.

Key legal issues

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01

Validity of the reason for termination

Holding

Termination was for a valid reason - the claimant's prolonged absence without formal permission amounted to desertion despite her medical condition

Reasoning

The court accepted the claimant was under treatment for hypertension from December 1997 and initially had lawful cause to be away while hospitalized. However, once discharged she remained away for over two years without seeking formal permission or visiting the workplace. Her conduct crossed from lawful absence to desertion, giving the employer a valid reason to terminate with full terminal benefits.

p. 4
02

Fairness of the termination procedure

Holding

The procedure was fair - a show cause letter was issued and answered, and on appeal the dismissal was reduced to normal termination with full benefits

Reasoning

The claimant received and responded to a show cause letter, did not attend the initial disciplinary hearing leading to dismissal, but lodged an appeal and appeared in person before the Disciplinary Appeals Advisory Board. The Board commuted the dismissal to normal termination, preserving her pension and terminal benefits. The court held this satisfied fair procedure and caused her no financial prejudice.

p. 5
03

Entitlement to further terminal benefits

Holding

Claimant entitled only to two months' arrear salary, one month's notice pay and three days' leave pay, totalling Kshs 36,115

Reasoning

The respondent conceded notice pay and three days' leave pay and admitted withholding two months' salary. The court found salary had been paid for the entire absence period except those two months. Since dismissal was commuted to termination effective 1st July 1998, the claimant could not claim arrears for the later period during which she rendered no services. Pension had already been paid in full.

p. 5

Legal principles established

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  • Absence from work without leave or lawful cause amounts to gross misconduct justifying summary dismissal
  • A medical condition does not excuse an employee from following proper procedures to obtain formal permission to be away from work
  • An employee dismissed for desertion but whose dismissal is commuted to normal termination on appeal cannot claim salary arrears for a period during which no services were rendered

Court orders

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  1. 1.Claimant awarded two months' arrear salary of Kshs 23,030
  2. 2.Claimant awarded one month salary in lieu of notice of Kshs 11,515
  3. 3.Claimant awarded three days salary in lieu of leave of Kshs 1,570.20
  4. 4.Total award of Kshs 36,115 payable with interest at court rates from date of filing suit until payment in full
  5. 5.Claim for compensation dismissed with costs
  6. 6.Claimant, being partly successful, entitled to the costs of the suit

Authorities

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Legislation

  • Employment ActSection 44(4)(a)
  • Pension ActCap 189
Jurisdiction invoked
Transferred from the Chief Magistrate's Court at Nairobi to the Employment and Labour Relations Court (Cause No. 517 of 2014)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (16)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Thecla Mokeira Onyancha v Kenya Wildlife Services [2015] KEELRC 211 (KLR)", Case Analysis (2015). Cause No. 517 of 2014 (formerly Milimani CMCC No. 7094 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/211/eng@2015-11-20

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