Edwin Kosgei v Metkei Multi-Purpose Company Ltd [2016] KEELRC 1430 (KLR)
The bottom line
#A Kenyan court ruled that an employee who ignored chances to explain his absence can't claim unfair dismissal—though he won Kshs 32,000 in unpaid leave.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the dismissal
The Claimant was afforded an opportunity to be heard but did not take it; he cannot impeach the process.
The Court was faced with two inconsistent narrations as to delivery of the disciplinary letters. Considering the Board minutes and the absence of suggestion that the Board did not meet, the Court found the Respondent's version more plausible - letters were posted and the Claimant failed to appear before the Board on 6 February 2014. He therefore could not impugn the process followed before dismissal.
Substantive fairness - desertion
The Respondent proved valid and fair reasons for the dismissal (desertion).
Both parties agreed the Claimant was last at work around 9 December 2013. With the finding that the letters were sent out, the Court was satisfied the Claimant had evinced an intention not to resume duty and snubbed opportunities to explain. Desertion was therefore established as a valid and fair reason for dismissal.
Right to fair administrative action under Article 47
Not violated; the Respondent was acting as an employer, not exercising administrative power.
The Claimant argued his Article 47 right was breached, relying on Shankar Saklani v DHL Global Forwarding and Kenneth Njiru Njorani v Dodhia Packaging. The Court held the action was purely contractual, to be tested under Article 41, reserving for another day cases where employment contracts underpinned by public law implicate fair administrative action.
Leave pay
Awarded Kshs 32,000/- as pleaded under section 10(3) of the Employment Act.
The Respondent as employer ought to have produced employment records to meet the leave claim but did not. Section 10(3) of the Employment Act shifts the evidential burden where records are not produced, so the Court found for the Claimant in the sum pleaded of Kshs 32,000/-.
Legal principles established
#- The fairness of a purely contractual termination of employment is determined under Article 41 and not Article 47 of the Constitution; the right to fair administrative action is not implicated where a private employer is acting as an employer.
- An employer who shows that an employee was afforded an opportunity to make representations but did not take it cannot have the dismissal process impeached; and where the employee snubs opportunities to explain, the employer has proved valid and fair reasons for dismissal.
- Where an employer fails to produce employment records in response to a leave claim, the court will find for the employee on the pleaded amount under section 10(3) of the Employment Act.
Court orders
#- 1.Dismissal of the Claimant held not unfair and the Cause dismissed except for an award of Kshs 32,000/- on account of accrued leave
- 2.Award of Kshs 32,000/- to the Claimant under section 10(3) of the Employment Act, 2007
- 3.Claimant denied costs for failing to file and serve submissions within the agreed timelines
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Article 41 of the Constitution; Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wareng High School v Sanga (Appeal E003 of 2023) (27 June 2025) (Judgment) (with dissent - MA Onyango, J) [2025] KEELRC 1968 (KLR)[2025] KEELRC 1968 (KLR)27 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Edwin Kosgei v Metkei Multi-Purpose Company Ltd [2016] KEELRC 1430 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1430/eng@2016-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.