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ELRCPartially AllowedCause No 1218 of 2012· [2016] KEELRC 1320 (KLR)

Mumo Maswili v Patriotic Guards Limited [2016] KEELRC 1320 (KLR)

Employment and Labour Relations Court
22 April 2016
861 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a security guard from March 2002, claimed unpaid salaries for several months of 2009 and 2010, leave pay for 2007-2010, service pay for 8 years, uniform deductions, one month's salary in lieu of notice, a certificate of service, costs and interest. He alleged termination without justifiable cause and without notice, while the Respondent asserted that he absconded duty at the end of June 2010 and his purported resignation on resumption was not accepted. The Respondent admitted owing salary for April, May and June 2010 and Kshs. 2,000 for uniform. The court framed two issues: whether the Claimant deserted duty or was unlawfully terminated, and whether he was entitled to the remedies sought. It held that desertion, like all misconduct, must be proved and minimally requires a show cause notice, none of which was issued. It further found no claim for unlawful termination was established, there being no specific prayer and the Claimant being equivocal on the termination date. Leave pay succeeded for want of leave records from the Respondent, and the admitted arrears and uniform deductions were payable. The court awarded Kshs. 48,491, directed issuance of a certificate of service, awarded the Claimant costs, and interest at court rates from the date of the award until payment in full.

Key legal issues

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01

Whether the Claimant deserted duty or was unlawfully terminated

Holding

The desertion claim was not proved as no show cause notice was issued; equally, no claim for unlawful termination was established owing to inconsistencies in the Claimant's pleadings and testimony.

Reasoning

The court held that desertion, as a form of misconduct, must be proved and minimally requires a show cause notice to the employee. None was produced, so the desertion claim failed. The court then examined whether unlawful termination was pleaded and found no specific prayer in the Statement of Claim, equivocation on the termination date (4th versus 20th August 2010, and the demand letter stating the Claimant terminated his own services), so the unlawful termination claim also failed.

p. 2
02

Whether the Claimant is entitled to the remedies sought

Holding

Leave pay, admitted salary arrears for April to July 2010, salary for 4 days in August 2010 and uniform deductions were awarded; other heads were dismissed.

Reasoning

The Respondent admitted salary arrears for April, May and June 2010 and the uniform deduction, which were therefore payable. The Respondent produced no leave records to rebut the Claimant's testimony, so leave pay for 3 years and 7 months succeeded, along with July 2010 salary and 4 days in August 2010. November and December 2009 salary, 19 days' salary, notice pay and service pay failed for want of proof or due to NSSF contributions.

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Legal principles established

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  • Desertion of duty is a serious offence exposing an employee to summary dismissal but, like all misconduct, must be proved; at the very least a show cause notice must have been issued to the deserting employee.
  • An employer claiming desertion bears the evidentiary burden of proving a show cause notice was issued.
  • An employee who does not plead a specific prayer for unlawful termination and is equivocal on the date of termination cannot establish such a claim.
  • Where an employer fails to produce leave records to counter an employee's testimony, the claim for leave pay succeeds.

Court orders

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  1. 1.Award of Kshs. 48,491 to the Claimant comprising leave pay for 3 years and 7 months (Kshs. 17,558), salary arrears for April, May, June and July 2010 (Kshs. 28,000), salary for 4 days in August 2010 (Kshs. 933) and uniform deductions (Kshs. 2,000)
  2. 2.Respondent directed to issue the Claimant with a certificate of service
  3. 3.Claimant awarded costs of the case
  4. 4.Award to attract interest at court rates from the date of the award until payment in full
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act over a claim for terminal dues and employment benefits

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, "Mumo Maswili v Patriotic Guards Limited [2016] KEELRC 1320 (KLR)", Case Analysis (2016). Cause No 1218 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1320/eng@2016-04-22

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