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ELRCPartially AllowedCause No. 1083 of 2012· [2016] KEELRC 1022 (KLR)

Cyrus Ng’anga Njuguna v Kahoya & Kahoya Limited [2016] KEELRC 1022 (KLR)

Employment and Labour Relations Court
10 June 2016
OMOnesmus Makau
1,339 words in judgment
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The bottom line

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A Kenyan court ruled an employee who abandons his job forfeits most claims, but is still owed service pay for every completed year worked.

What this practically means

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Executive summary

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The Claimant sued for a declaration that his dismissal was unlawful and untimely plus separation dues of kshs 111,327, alleging he was a night guard employed from 17 October 2007 who was told on 10 July 2011 that there was no more work, without reason or hearing. The Respondent denied liability, contending the Claimant was found drunk and asleep on duty on the night of 9th/10th July 2011, was redeployed to general farm duties, and deserted work without notice. The Claimant (CW1) denied drunkenness and said his supervisor chased him away at 4am and barred him from signing out. RW1 admitted he had no evidence of drunkenness and never served any warning or deployment letter, but maintained the Claimant absconded protesting redeployment. The court found on a balance of probability that the Claimant deserted employment voluntarily, noting inconsistencies between his pleadings and testimony, and credited RW1's consistent account. The court declined the declaration, salary in lieu of notice, and compensation. However, relying on RW1's admission and section 35(5) of the Employment Act, the court awarded service pay for 4 completed years at 20 days per year, computed at kshs 18,949. Judgment was entered for the Claimant for kshs 18,949 plus costs and interest from the date of filing the suit. Signed by Onesmus Makau J on 26 May 2016 at Mombasa and delivered at Nairobi on 10 June 2016.

Key legal issues

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01

Whether the Claimant was dismissed or deserted employment

Holding

The court found on a balance of probability that the Claimant voluntarily deserted work after being redeployed to general duties, and was not dismissed

Reasoning

The court found inconsistencies between the Claimant's pleadings and his sworn testimony, including that he concealed meeting RW1 who communicated termination due to lack of work. RW1's evidence was consistent, and he admitted having no proof of drunkenness but maintained the Claimant absconded after protesting redeployment. The Claimant's testimony of dismissal was rejected as unbelievable.

p. 2
02

Entitlement to service pay

Holding

The Claimant, having served from October 2007 to July 2011, was awarded service pay at 20 days per year for 4 completed years, computed as kshs 18,949

Reasoning

RW1 admitted the Claimant was entitled to service pay. Section 35(5) of the Employment Act entitles an employee to service pay for every completed year of service. Serving 4 years and 9 months, the court used 20 days per year, excluding the incomplete 5th year, yielding kshs 7106 x 20/30 x 4 = kshs 18,949.

p. 3

Legal principles established

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  • An employee who voluntarily deserts employment without notice is not entitled to a declaration of unlawful termination, salary in lieu of notice, or compensation
  • A claimant's case is weakened where there is a disconnect between pleadings and evidence
  • Under section 35(5) of the Employment Act an employee is entitled to service pay for every completed year of service

Court orders

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  1. 1.Judgment entered for the Claimant for the sum of kshs 18949 plus costs and interest from the date of filing the Suit
  2. 2.Claim for declaration that termination was unlawful and untimely declined
  3. 3.Claim for salary in lieu of notice declined
  4. 4.Claim for compensation for unlawful termination dismissed
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, section 35(5) applied)

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, "Cyrus Ng’anga Njuguna v Kahoya & Kahoya Limited [2016] KEELRC 1022 (KLR)", Case Analysis (2016). Cause No. 1083 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1022/eng@2016-06-10

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