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Case Brief · caselaw.co.ke
ELRCDismissedCause No. 1535 of 2014

Josephat Otieno Okwedo v Villa Care Management Limited [2018] KEELRC 45 (KLR)

Industrial Court of Kenya at Nairobi
20 December 2018
1,497 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled an employee dismissed after leaving work unauthorised was lawfully terminated, so his Kshs.252,500 claim failed.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent as a caretaker, day guard and store keeper on a gross salary of Kshs.15,000 per month, sued claiming unlawful and unfair summary dismissal and terminal dues. His case was that on 28th April 2014 he took his wife to hospital with notice to his supervisor, and that while he was away a commotion arose among a contractor's unpaid workers resulting in violence and breakages at the respondent's premises. He was issued a show-cause letter, responded with an explanation and apology, and was dismissed on 9th May 2014. He sought declarations of unlawful dismissal, terminal dues and compensatory damages totalling Kshs.252,500, with interest and costs. The respondent maintained the dismissal was lawful, citing absenteeism, negligence and theft of materials at his designated work area, and asserted he was heard and paid his dues. The parties agreed to determination by written submissions. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. The court found the claimant was absent from duty without authority on the material date, that his explanations were farfetched and unsupported by evidence, and held the termination lawful. Consequently, the claimant was held disentitled to the relief sought. The claim was dismissed with each party bearing their own costs. The claimant's counsel relied on KUDHEIHA WORKERS v MOMBASA SPORTS CLUB and section 45 of the Employment Act; the respondent filed no submissions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful?
  2. 2.Whether the claimant is entitled to the relief sought?
  3. 3.Who bears the costs of this claim?

Key legal issues

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01

Whether the summary dismissal was wrongful, unfair and unlawful

Holding

The termination was lawful; the claimant was away from duty without authority and his explanations were unsupported by evidence

Reasoning

The court reviewed the respondent's documentary evidence including the letter on negligence and desertion of duty, the claimant's unsigned response, and the receipt of final dues. It found the claimant was not a reliable employee, occasionally deserted duty, and was absent without authority on the material date. His explanation of notifying a supervisor and being unable to restrain the contractor's workers was deemed farfetched. The claim collapsed.

p. 3
02

Whether the claimant is entitled to the relief sought

Holding

The claimant is not entitled to the relief sought because he failed on the unfair termination claim

Reasoning

Having determined that the termination was lawful, the court found the consequential claims for salary, notice pay, leave, and service pay could not stand, since they flowed from a finding of unlawful and unfair dismissal which was not made.

p. 3

Legal principles established

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  • Where an employer demonstrates the employee deserted duty without authority and the employee's explanation is unsupported by evidence, the termination is lawful

Court orders

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  1. 1.Dismissal of the claimant's claim with orders that each party bears their costs of the claim

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

MO
Maureen OnyangoPrincipal Judge
majority
Jurisdiction invoked
Employment and labour relations jurisdiction over a claim of unfair termination under the Employment Act, 2007

Relief refused

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Declaration of unlawful and unfair dismissal, payment of terminal dues and compensatory damages totaling Kshs.252,500/= with interest

The claimant failed to prove unfair termination; having lost on the first issue, he became disentitled to relief

p. 3

Costs

Each party to bear their own costs of the claim

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

On the material date of the skirmishes by the workers of the contractor, the claimant was away from duty without authority. His attempt to explain these are farfetched and not supported by any evidence.
p. 3absence from duty without authority
The claim therefore collapses and I hold a case of lawful termination of employment in the circumstances.
p. 3lawful termination
Having lost on a case of unlawful termination of employment, he becomes disentitled to the relief sought.
p. 3relief refused
I am therefore inclined to dismiss the claim with orders that each party bears their costs of the claim.
p. 3disposition and costs

Issues in the judgment

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minor

The judgment cites a constitutional article inconsistently, with a question mark indicating uncertainty

minor

The claimant's return-to-work date is inconsistently stated as 2011 in a judgment concerning events in 2014

minor

The date of judgment is left blank in the 'Dated and signed' clause and appears only in the delivery clause

minor

The 'Dated and signed' clause names D.K. Njagi Marete while the 'Delivered and signed' clause names Maureen Onyango, without explanation

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, "Josephat Otieno Okwedo v Villa Care Management Limited [2018] KEELRC 45 (KLR)", Case Analysis (2018). Cause No. 1535 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/45/eng@2018-12-20

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