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ELRCPartially AllowedCause No. 35 of 2013· [2016] KEELRC 487 (KLR)

Steven Omollo Kitai v Kibos Sugar & Allied Industries Limited [2016] KEELRC 487 (KLR)

Employment & Labour Relations Court
8 September 2016
MOMaureen Onyango
2,228 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that an employer cannot just assume a worker quit — it must formally prove desertion or pay for unfair termination.

What this practically means

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Executive summary

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The claimant, employed as an electrician, sued for unlawful termination following a strike at the respondent's factory on 2nd February 2011. He said he was denied entry at the gate after night shift, attended an investigative meeting on 4th February 2011, was told to go home and await recall, and was never recalled despite attempts to follow up, including a union intervention letter. The respondent's Human Resources Manager maintained that the claimant deserted duty after failing to attend a 9th February 2011 meeting and failing to return on 14th February 2011. The court held that termination cannot be presumed: the employer bore the duty to charge the employee with desertion, invite him to a disciplinary hearing, and formally communicate any termination with reasons. The unsigned minutes authored by the respondent, the absence of any desertion or termination letter, and the failure to put a key allegation in cross-examination led the court to find the claimant was unfairly terminated. On remedies, the court awarded one month's notice pay, pay in lieu of 42 months' accrued leave, Saturday, Sunday and public holiday overtime limited to 12 months as continuing wrongs under section 90 (the employer having failed to produce statutory records, shifting the burden to it), and six months' gross salary as compensation. Underpayment, night shift allowance, severance pay and enhanced notice were rejected. A certificate of service was ordered, with costs and interest from the date of judgment.

Key legal issues

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01

Whether the claimant deserted duty or was terminated

Holding

The claimant was unfairly terminated by the Respondent.

Reasoning

The minutes of the 4th February 2011 meeting were unsigned and authored by RW1 with no independent confirmation of an agreed 9th February meeting. There was no letter charging the claimant with desertion and no letter terminating his employment. The claimant made attempts to establish his fate, and a critical allegation was never put to him in cross-examination. Section 41 procedure and section 12 disciplinary rules requirements were not met.

p. 3
02

Entitlement to notice pay, leave, overtime and compensation

Holding

One month's notice, leave pay for 3.5 years, Saturday/Sunday/public holiday overtime limited to 12 months, and 6 months' salary as compensation were awarded; underpayment, night shift allowance and severance were rejected.

Reasoning

Notice of one month follows as of right from unfair termination absent contractual basis for four months. Leave non-enjoyment was uncontroverted. Failure by the employer to produce records under sections 10 and 74 shifted the burden to it under section 10(7), justifying overtime awards limited to 12 months as continuing wrongs under section 90. Salary exceeded statutory minimum wage so no underpayment; severance applies only to redundancy.

p. 4

Legal principles established

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  • Termination of employment cannot be presumed; the employer must inform the employee of misconduct including desertion, invite him to a hearing, and formally inform him of termination with reasons.
  • Where an employer fails to produce employment records required under sections 10 and 74 of the Employment Act, the burden of proving or disproving the alleged term of employment falls on the employer under section 10(7).
  • Overtime and similar continuing wrongs are claimable only for the 12 months preceding the claim under section 90 of the Employment Act.

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was unfair
  2. 2.Payment of notice of 1 month's gross salary of Kshs.14,490.00
  3. 3.Pay in lieu of annual leave for 42 months at 1.75 days per month of Kshs.35,500.50
  4. 4.3 hours Saturday overtime for 52 weeks at 1.5 times hourly rate of Kshs.14,129.00
  5. 5.Sunday overtime at double hourly rate of Kshs.50,236.15
  6. 6.Public holidays pay of Kshs.4,830.40
  7. 7.Compensation of 6 months gross salary of Kshs.86,940.00 for unfair termination
  8. 8.Respondent to issue a certificate of service to the Claimant
  9. 9.Respondent to pay Claimant's costs and interest from date of judgment
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment & Labour Relations Court (Cause filed as Memorandum of Claim)

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, "Steven Omollo Kitai v Kibos Sugar & Allied Industries Limited [2016] KEELRC 487 (KLR)", Case Analysis (2016). Cause No. 35 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/487/eng@2016-09-08

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