Ragose Katana Chidyanga & another v China Jiangxi International Kenya Limited [2018] KEELRC 307 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Nature and status of the Claimants' employment
Claimants were regular employees on term contract, not casuals
The Respondent pleaded that the Claimants were casual employees but produced no attendance register or casual payment vouchers. Its own witness testified that the Claimants started work in June 2014 and May 2015 respectively, which contradicted the pleadings and matched the Claimants' account. The casual-employment allegation was therefore unsupported and rejected.
Whether the Claimants deserted duty or were unlawfully terminated
Termination was substantively and procedurally unfair; the desertion defence failed
Desertion is a serious offence but must be proved. An employer alleging desertion must show efforts to contact the employee and put them on notice that termination is under consideration. The Respondent adduced no evidence of any such effort, so the defence was unproved and the Claimants' unchallenged testimony of unlawful termination was believed.
Entitlement to remedies
Six months' compensation, one month's notice pay, and leave pay awarded; underpayment claims dismissed
Compensation was assessed at six months' salary considering length of service and the Respondent's conduct. In the absence of any leave records, leave pay claims succeeded. Underpayment claims failed because the Claimants produced no certificates confirming their training levels for the building and construction positions.
Respondent's counterclaims
Counterclaims could not stand given the finding of unlawful termination
The Respondent had counterclaimed one month's wages in lieu of notice from each Claimant on the basis that they deserted duty without notice. Having found that the Claimants' employment was unlawfully terminated rather than that they deserted, the Court held the counterclaims could not stand and dismissed them.
Legal principles established
#- An employer alleging desertion must prove it and demonstrate efforts made to reach out to the employee before termination on account of desertion
- Allegations that employees were casual must be supported by documentary evidence; otherwise the employment will be treated as regular term contract
Court orders
#- 1.Judgment entered in favour of the 1st Claimant in the sum of Kshs. 112,123 (6 months' salary compensation, 1 month's salary in lieu of notice, leave pay for 2 years, prorata leave for 5 months)
- 2.Judgment entered in favour of the 2nd Claimant in the sum of Kshs. 101,414 (6 months' salary compensation, 1 month's salary in lieu of notice, leave pay for 1 year, prorata leave for 9 months)
- 3.Interest at court rates from the date of judgment until payment in full
- 4.Respondent directed to remit all unremitted NSSF dues on the Claimants' accounts within thirty (30) days from the date of the judgment
- 5.Claimants entitled to certificates of service
- 6.Claimants awarded costs of the case
- 7.Respondent's counterclaims dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act (employment dispute)
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.
- Protective Custody Limited v Omukuba (Appeal E036 of 2021) [2023] KEELRC 2817 (KLR)[2023] KEELRC 2817 (KLR)9 Nov 2023applied
Cite this brief
#Cite this brief
Caselaw, "Ragose Katana Chidyanga & another v China Jiangxi International Kenya Limited [2018] KEELRC 307 (KLR)", Case Analysis (2018). Consolidated cause; Memoranda of Claim dated 5th July 2017, filed 7th July 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/307/eng@2018-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.