Muthai Muli v Trailink Fabricators [2018] KEELRC 407 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant deserted duty or was unlawfully dismissed
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.
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.
Whether the Claimant is entitled to the remedies sought
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.
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
#- 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
#- 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.The amount to attract interest at court rates from the date of delivery of the judgment until payment in full
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.