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ELRCPartially AllowedCause Number 751 of 2015· [2016] KEELRC 1014 (KLR)

Samson Chembe Vuko v County Government of Kilifi [2016] KEELRC 1014 (KLR)

Employment and Labour Relations Court of Kenya
1 July 2016
2,045 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court reinstated an employee it found wrongly dismissed, ruling that employers must communicate disciplinary outcomes and silence never counts as leave approval.

What this practically means

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Executive summary

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The Claimant, employed by the former County Council of Kilifi in December 2000 as a Revenue Clerk and later serving the County Government of Kilifi as a Computer Programmer, took 60 days' annual leave from November 2013 and extended it by 30 days on the basis of accumulated leave days, writing to the Respondent for authorization but receiving no reply. The Respondent issued a show-cause letter in June 2014, alleging absence without permission from 18th March 2014 and later desertion. A disciplinary hearing was held in September 2015 but no decision was ever communicated. The Claimant filed this Cause in October 2015 seeking reinstatement or clarification of his employment status, back salary, leave pay and terminal dues. The parties consented to determination on the record. The Court found the initial 60 days' leave was authorized but the 30-day extension was not, holding the Claimant wrongly assumed silence equated to approval, since excess leave days under Section 28(5) of the Employment Act may only be used by agreement. However, the Court rejected the Respondent's allegations of desertion and oral resignation, finding no resignation letter and holding that the Respondent was duty-bound to communicate the disciplinary outcome. Given the Claimant's 13 years of untarnished service and excusable misunderstanding, the Court ordered reinstatement with effect from 1st August 2016, treating the period out of employment as unpaid leave. Claims for back salary and two months' leave pay were rejected, and no order was made on costs.

Key legal issues

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01

Whether the 30-day extension of annual leave was authorized

Holding

It was not; the Claimant was absent without leave after 18th March 2014 because excess leave days may only be used by agreement

Reasoning

The Court found the original 60 days were authorized via the Request Form, but no agreement existed on the accumulated excess days. Silence from the employer on a written extension request was not approval. The Claimant should have formally sought extension through a Request Form; his unilateral assumption gave the employer no chance to plan for continuity of work.

p. 3
02

Whether the Claimant deserted or orally resigned

Holding

Neither desertion nor resignation was established; no decision or resignation letter existed and the Claimant wished to continue serving

Reasoning

The Respondent alleged the Claimant resigned orally at the disciplinary hearing, but no letter of resignation was on record and the Claimant had demanded to know his employment status through advocates, inconsistent with resignation. The Court held the initiative lay with the Respondent to complete the disciplinary process and communicate its decision.

p. 4
03

Whether reinstatement should issue

Holding

Reinstatement was merited as the primary remedy given the Claimant's 13 years of untarnished service and the excusable misunderstanding

Reasoning

The Court noted miscommunication between the parties, the Claimant's creditable 13 years of service, and his untarnished record prior to 18th March 2014. Holding that he should not leave employment under a cloud of uncertainty, the Court exercised discretion to reinstate him, while treating the period out of employment as unpaid leave.

p. 4

Legal principles established

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  • Even where an employee is considered to have abandoned his job, the employer must attempt to reach the employee and apply the disciplinary procedure in the Employment Act
  • Once a disciplinary process is commenced, the employer must communicate the outcome; oral resignation cannot be presumed at the end of the process
  • Excess annual leave days beyond the statutory minimum may only be utilized by agreement between employer and employee under Section 28(5) of the Employment Act
  • An employee cannot treat an employer's silence on a leave extension request as approval

Court orders

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  1. 1.The Respondent shall reinstate the Claimant to the position of Computer Programmer with effect from 1st August 2016
  2. 2.The prayers for back salary and 2 months' annual leave pay are rejected
  3. 3.The period the Claimant has been out of employment, beginning from the date of his salary stoppage, shall be treated as a period of unpaid leave
  4. 4.No order on the cost

Authorities

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Legislation

  • Employment ActSection 28(1)(a)
  • Employment ActSection 28(5)
  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)
  • Collective Bargaining Agreement between the Respondent and the relevant Trade UnionClause 22

Cases cited (2)

  • Donald Mumo Moses v. Mid-Wave Freighters Limited
    Industrial Court Cause Number 95 of 2013
  • Daniel Sirengo Wakhunga v. Sawa Sawa Academy
    [2015] e-KLR, Cause Number 199 of 2014
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution; dispute determined under Rule 27(1)(a) of the Industrial Court (Procedure) Rules 2010

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, "Samson Chembe Vuko v County Government of Kilifi [2016] KEELRC 1014 (KLR)", Case Analysis (2016). Cause Number 751 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1014/eng@2016-07-01

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