Chrispine Onguso Okinyi v Devki Steel Mills Limited [2018] KEELRC 40 (KLR)
The bottom line
#A Kenyan employer claiming an employee 'deserted' must prove it with records and evidence, otherwise the dismissal is unfair and compensation follows.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a termination of the claimant's employment
A termination ensued. The respondent's defence of desertion was not proved to the required standard; the employer bore the onus of demonstrating steps taken upon alleged desertion and produced no employment records.
The court held that while he who alleges must prove, an employer pleading desertion must demonstrate it on a balance of probability, including evidence of disciplinary action. Sections 9, 10 and 74 of the Employment Act require the employer to maintain records; the absence of records left the court unable to verify the respondent's account, and the claimant could not be blamed for lack of proof of the defence.
Whether the termination was wrongful, unfair and unlawful
The termination was unlawful, there being no defence to the claim of unlawful termination.
Having found a termination occurred, the court noted the respondent had not mounted a defence of lawful termination. In the absence of such a defence, the claimant succeeded on the fairness issue and became entitled to the relief sought, including the declaration, notice pay, October 2012 salary and twelve months' compensation.
Whether the claimant is entitled to compensation for permanent disability under WIBA
The court declined to award WIBA compensation for lack of jurisdiction, leaving the question open.
The claimant sought Kshs.1,440,000.00 as compensation for permanent disablement under section 30 of the Work Injury Benefits Act, 2007. The court held it lacked jurisdiction over this subject matter and left the issue open, effectively severing that head of claim from the award on termination.
Legal principles established
#- Where an employer relies on a defence of desertion or abscondment of duty, the onus lies on the employer to demonstrate in evidence the steps it took, failing which a termination will be found.
- An employer is mandated by sections 9, 10 and 74 of the Employment Act, 2007 to keep and maintain employment records; absence of such records weighs against the employer.
Court orders
#- 1.A declaration that the termination of employment of the claimant by the respondent was wrongful, unfair and unlawful
- 2.One month's salary in lieu of notice of Kshs.15,000.00
- 3.Salary for October, 2012 of Kshs.15,000.00
- 4.Twelve months' compensation for unlawful termination of employment of Kshs.180,000.00 (total award Kshs.210,000.00)
- 5.The cost of the claim to be borne by the respondent
- Jurisdiction invoked
- Sections 12(1) of the Industrial Court Act, No. 20 of 2011; Employment Act, 2007; Work Injury Benefits Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chrispine Onguso Okinyi v Devki Steel Mills Limited [2018] KEELRC 40 (KLR)", Case Analysis (2018). Cause No. 1344 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/40/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.