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ELRCPartially AllowedMemorandum of Claim dated 30th June 2011, amended 15th November 2012· [2018] KEELRC 407 (KLR)

Muthai Muli v Trailink Fabricators [2018] KEELRC 407 (KLR)

Employment and Labour Relations Court
20 December 2018
1,293 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed as a driver (per the Respondent from September 2006; per the Claimant from 3rd February 2003), was summarily dismissed on 13th February 2011 over allegations that he tampered with the GPRS tracking system fitted in his assigned vehicle. He claimed damages for wrongful termination, unpaid leave, three months' notice pay, unpaid holidays, severance pay, overtime and illegal deductions. The Respondent denied dismissing him, asserting he deserted duty after being confronted over the failed GPRS system and denied involvement. The court framed two issues: whether the Claimant deserted duty or was unlawfully dismissed, and his entitlement to remedies. Applying the principle that desertion must be proved by showing the employer made efforts to reach the employee and put them on notice of contemplated termination, the court found no evidence of any such effort. Even assuming the GPRS tampering accusation, the mandatory disciplinary procedure under Section 41 of the Employment Act, 2007 was not followed. The termination was therefore without justifiable cause and in violation of due procedure. On remedies, the court awarded ten months' salary in compensation (Kshs. 180,000) considering length of service and the Respondent's conduct, and three months' notice pay (Kshs. 18,000) since the Respondent's Response admitted a three-month notice period, totaling Kshs. 198,000. Claims for leave pay, public holidays, overtime, illegal deductions and severance pay were dismissed for lack of proof or basis. The award attracts interest at court rates from the date of judgment until payment in full, and the Claimant was awarded costs.

Key legal issues

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01

Whether the Claimant deserted duty or was unlawfully dismissed

Holding

The defence of desertion was not proved as there was no evidence of any effort by the Respondent to reach out to the Claimant; equally, the charge of tampering with the GPRS system was not proved at the shop floor since the mandatory Section 41 procedure was not followed. The termination was therefore without justifiable cause and in violation of due procedure.

Reasoning

The court held that desertion must be proved by showing the employer made efforts to contact the employee and put them on notice of contemplated termination. No such efforts were evidenced. Further, even assuming the GPRS tampering accusation was valid, the mandatory disciplinary process under Section 41 of the Employment Act was not undertaken, so the dismissal was procedurally and substantively unfair.

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02

Whether the Claimant is entitled to the remedies sought

Holding

The Claimant was awarded 10 months' salary in compensation and 3 months' notice pay; the claims for leave pay, public holidays, overtime, illegal deductions and severance pay were dismissed.

Reasoning

Compensation was fixed at ten months' salary taking into account length of service and the Respondent's conduct in the termination. The Respondent's own Response admitted a three-month notice period, grounding the notice pay award. Leave pay was shown to have been paid up to 31st December 2010, and the remaining heads failed for want of proof.

Legal principles established

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  • Desertion of duty renders an employee liable to dismissal but must be proved by demonstrating the employer made efforts to reach the deserting employee and put them on notice that termination on account of desertion is being considered
  • Before termination on grounds of misconduct an employee must be subjected to the mandatory disciplinary procedure under Section 41 of the Employment Act, 2007

Court orders

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  1. 1.Judgment entered in favour of the Claimant for 10 months' salary in compensation (Kshs. 180,000) and 3 months' salary in lieu of notice (Kshs. 18,000), total Kshs. 198,000
  2. 2.The amount to attract interest at court rates from the date of delivery of the judgment until payment in full
  3. 3.The Claimant awarded the costs of the case
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute; Section 41 of the Employment Act applied)

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, "Muthai Muli v Trailink Fabricators [2018] KEELRC 407 (KLR)", Case Analysis (2018). Memorandum of Claim dated 30th June 2011, amended 15th November 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/407/eng@2018-12-20

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