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ELRCPartially AllowedCause No 45 of 2015· [2016] KEELRC 1595 (KLR)

David Asige Keya v Hotel Waterbuck Limited [2016] KEELRC 1595 (KLR)

Industrial Court (Employment and Labour Relations Court), Nakuru
8 March 2016
RSRadido Stephen
1,226 words in judgment
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The bottom line

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A Kenyan court ruled that even when an employee abandons work, the employer must still give them a chance to explain before dismissal, or the dismissal is unfair.

What this practically means

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Executive summary

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The Claimant sued the Respondent for wrongful dismissal in the Chief Magistrates Court in 2010; the suit was transferred to this Court on 4 December 2014 for hearing and determination. The Court adopted the issues filed by the parties. On employment, the Respondent's own witness confirmed the Claimant was an employee, but dates conflicted; as no written contract was issued or produced, the Court found employment began in November 2006 as the Claimant alleged. On desertion, the parties gave inconsistent accounts - the Respondent alleging the Claimant absented himself after an ETR machine incident, the Claimant alleging oral dismissal on 28 February 2010 after his arrest, prosecution and conviction over the machine, with the Respondent paying the fine. Unable to resolve the factual conflict, the Court applied the law on dismissal for desertion: desertion justifies summary dismissal, but section 41 of the Employment Act, 2007 requires the employer to afford the employee an opportunity to explain. No show cause notice or ultimatum was documented, so the Respondent failed to discharge its burden and the dismissal was unfair. On remedies, the Court awarded Kshs 72,000/- house allowance (the wage presumed unconsolidated given no written contract and the employer's disclosure duty under section 28) and Kshs 1,584/- uncontroverted public holiday overtime, totalling Kshs 73,584/-. Notice pay was limited to one month on statutory footing; overtime, leave and travelling allowance, service charge and compensation were declined for want of pleading, evidence or credibility. The remaining heads were dismissed and the Claimant was awarded costs of Kshs 25,000/-.

Key legal issues

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01

Existence and commencement date of employment

Holding

Claimant was an employee from November 2006 despite lack of written contract

Reasoning

Written contracts are ordinarily drawn by the employer. None was issued or produced, and dates of commencement were inconsistent between the parties. Drawing adverse inference from the employer's failure to produce a written contract, the Court fixed commencement at the date the Claimant alleged, November 2006, rather than August 2008 as the Respondent's witness stated.

p. 1
02

Procedural fairness in dismissal for desertion

Holding

Dismissal was unfair for non-compliance with section 41 of the Employment Act, 2007

Reasoning

Although desertion justifies summary dismissal, section 41 requires the employer to afford the employee an opportunity to explain. The Respondent produced no documentation or correspondence showing a show cause notice or ultimatum was issued after the alleged desertion. The burden of proving compliance with section 41 lay on the employer and was not discharged.

p. 2
03

House allowance

Holding

Awarded Kshs 72,000/- as the wage was presumed not consolidated

Reasoning

Section 28 requires the employer to disclose whether wages include a housing element. With no written contract, the Court presumed the wage was not inclusive of housing allowance and allowed the head of claim.

p. 3
04

Overtime during public holidays

Holding

Kshs 1,584/- awarded as uncontroverted

Reasoning

The Respondent did not challenge or controvert this head of claim, so it was allowed as claimed.

p. 3

Legal principles established

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  • Desertion is repudiation and misconduct justifying summary dismissal, but the employer must still afford the employee an opportunity to explain under section 41 of the Employment Act.
  • Where no written contract exists and none was produced, the Court may presume the wage was not inclusive of housing allowance, since the employer must disclose under section 28.
  • Employers should keep records when taking disciplinary action.

Court orders

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  1. 1.Respondent to pay the Claimant house allowance of Kshs 72,000/-
  2. 2.Respondent to pay the Claimant overtime (public holidays) of Kshs 1,584/-
  3. 3.Total award of Kshs 73,584/-
  4. 4.Other heads of claim dismissed
  5. 5.Claimant to have costs of Kshs 25,000/-

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 35
  • Employment Act, 2007section 49
  • Employment Actsection 28
Jurisdiction invoked
Suit transferred from the Chief Magistrates Court to this Court for hearing and determination; Employment Act, 2007 provisions (ss. 28, 35, 41, 49)

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, "David Asige Keya v Hotel Waterbuck Limited [2016] KEELRC 1595 (KLR)", Case Analysis (2016). Cause No 45 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1595/eng@2016-03-08

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