Dancun Muyangu Kibisu v Mediteraneo Restaurant [2016] KEELRC 1830 (KLR)
The bottom line
#A Kenyan court dismissed a waiter's unfair termination claim because it found he abandoned his job after refusing a transfer, reminding workers to always give notice.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant absconded or was terminated
The Claimant absconded from work after resisting a transfer; the Respondent did not terminate his employment.
With a verbal contract and verbal transfer, the evidence was mutually destructive and turned on credibility. The court accepted that the Claimant resisted the transfer to Gigiri despite an offer of transport, and did not report to work the following day. The Respondent's computation and forwarding of terminal dues to the Labour Office corroborated that the Claimant left of his own accord.
Whether termination was for valid reason and fair procedure
Moot, since the court found the Claimant absconded and was not terminated.
Having answered the first issue against the Claimant, the second issue on reason and procedure fell away as there was no termination by the Respondent to evaluate.
Entitlement to remedies sought
All heads of claim failed for lack of proof or because they were defeated by the finding of abscondment.
Notice pay and service gratuity were unavailable to an employee who absconded and who was NSSF-registered under sections 35(5) and 35(6) of the Employment Act. Leave travelling allowance, public holiday pay, overtime and house allowance/underpayment claims were all unproven on the evidence.
Legal principles established
#- A claimant who absconds from employment is not entitled to payment in lieu of notice.
- Employees registered with NSSF whose contributions were remitted are not entitled to service gratuity, guided by sections 35(5) and 35(6) of the Employment Act, 2007.
- A party who alleges must prove allegations on a balance of probability.
Court orders
#- 1.The suit by the claimant is dismissed with no order as to costs.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dancun Muyangu Kibisu v Mediteraneo Restaurant [2016] KEELRC 1830 (KLR)", Case Analysis (2016). Cause No. 563 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1830/eng@2016-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.