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ELRCPartially AllowedCause (number not stated in judgment)· [2015] KEELRC 300 (KLR)

Philemon Kiprotich Kirui v Lessos Veterinary Suppliers Ltd (CICADA Hotel) [2015] KEELRC 300 (KLR)

Employment and Labour Relations Court
6 November 2015
RSRadido Stephen
1,185 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employer claiming an employee absconded must prove it, and must still hold a fair hearing before ending employment.

What this practically means

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Executive summary

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The Claimant sued the Respondent in November 2013 for unlawful termination of employment, seeking pay in lieu of notice, accrued leave, gratuity and compensation for unfair termination. The Respondent's case, through its Operations Manager and Director Dr. Mwangi Gitonga, was that a customer's Kshs 90,000/- went missing, the Claimant was arrested and charged, and that he never resumed duty after release on bond - hence he absconded and was not dismissed. The Claimant testified that he reported back to work but a Manager told him he was not required because he was a criminal. The Court identified two issues: whether the Claimant absconded or was unfairly dismissed, and the appropriate remedies. Applying section 41 of the Employment Act and comparative and local authority, the Court held that the employer asserting abscondment must prove the employee had no intention to resume work, and that repudiation by an absconding employee does not automatically terminate the contract - the innocent party must accept it. The Respondent proved neither intention nor any attempt to contact the Claimant, and never gave an ultimatum. The Court found the Claimant did not abscond but was dismissed, and since no section 41 hearing was held, the dismissal was unfair. On remedies, the Court awarded one month's pay in lieu of notice (Kshs 9,500/-), accrued leave (Kshs 10,681/-) uncontroverted and unrecorded by the Respondent, and compensation of two months' wages (Kshs 19,000/-) given one year of service, totalling Kshs 39,181/-. Gratuity was refused for want of contractual or statutory basis. The Claimant received costs.

Key legal issues

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01

Whether the Claimant absconded or was dismissed

Holding

The Court found the Claimant did not abscond; he was dismissed. Even if he had absconded, the Respondent did not accept the repudiation

Reasoning

The Respondent did not demonstrate that the Claimant intended never to resume work, nor that it attempted to contact him or require him to show cause for his absence. The Director never told the Claimant he was dismissed. Had there been genuine abscondment, the Respondent as innocent party could have given an ultimatum to resume duty or accepted the repudiation, but it elected to do neither.

p. 2
02

Whether the termination was procedurally fair

Holding

The dismissal was unfair because no hearing was held

Reasoning

Section 41 of the Employment Act requires an employer, before terminating employment on grounds of misconduct, to explain the reasons to the employee in a language the employee understands, with a fellow employee or union representative present. It was not disputed that no such hearing was held, so the dismissal was procedurally unfair.

p. 2
03

Pay in lieu of notice

Holding

Awarded one month's pay in lieu of notice

Reasoning

The letter of appointment and section 35 of the Employment Act entitled the Claimant to one month written notice. None was issued, so he was entitled to one month's pay in lieu of notice.

p. 2
04

Accrued leave

Holding

Award of Kshs 10,681/- for accrued leave

Reasoning

The Claimant testified he never went on leave during employment; this was not controverted and the Respondent produced no employment records. Under sections 10(3) and (7) and 74 of the Employment Act, the Court found for the Claimant.

p. 2
05

Compensation for unfair termination

Holding

Equivalent of two months' gross wages (Kshs 19,000/-) awarded

Reasoning

Compensation is a primary though discretionary remedy. Considering the Claimant's length of service of about one year, the Court awarded the equivalent of two months' gross wages based on the Kshs 9,500/- wage in the appointment letter.

p. 3

Legal principles established

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  • Absconding amounts to repudiation of the employment contract, which does not automatically terminate it; the innocent employer must accept the repudiation for the contract to end
  • The employer asserting desertion or abscondment bears the burden of proving the employee had no intention to resume work
  • A termination without the hearing required by section 41 of the Employment Act is unfair

Court orders

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  1. 1.Respondent to pay the Claimant one month pay in lieu of notice of Kshs 9,500/-
  2. 2.Respondent to pay the Claimant accrued leave of Kshs 10,681/-
  3. 3.Respondent to pay the Claimant compensation equivalent to 2 months wages of Kshs 19,000/-
  4. 4.Total award of Kshs 39,181/- to the Claimant
  5. 5.Claimant to have costs of the Cause

Authorities

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Legislation

  • Employment Act, 2007section 41(1)
  • Employment Act, 2007section 42(1)
  • Employment Act, 2007section 44(4)
  • Employment Act, 2007section 35
  • Employment Act, 2007sections 10(3), (7) and 74

Cases cited (7)

  • Department of Education Gauteng v J Msweli & Ors
    Case No. JR 2145 of 2008
  • London Transport Executive v Clarke
    (1981) IRLR 166
  • Geys v Societe Generale, London Branch
    (2012) UKSC 63
  • James Okeyo v Maskant Flower Ltd
    (2015) eKLR
  • Philomena Aromba Mbalasi v Uni-Truck World Ltd
    (2015) eKLR
  • Antony Tendwa Shibayilo v Carzan Flowers Ltd
    (2014) eKLR
  • Ebrahim John Amwayi v Mabati Rolling Mills Ltd
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007 and Labour Relations Act jurisdiction; not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Philemon Kiprotich Kirui v Lessos Veterinary Suppliers Ltd (CICADA Hotel) [2015] KEELRC 300 (KLR)", Case Analysis (2015). Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/300/eng@2015-11-06

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