Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMemorandum of Claim dated 14th September 2016· [2018] KEELRC 552 (KLR)

Reuben Kenyanya Simeka v Kevin Kepha Nyongesa t/a Kevin Hill Schools [2018] KEELRC 552 (KLR)

Employment and Labour Relations Court
27 November 2018
LNLinnet Ndolo
1,508 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer lost an unfair termination case because it couldn't prove an employee deserted his job — evidence, not assertions, wins.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent as a security guard from 2007 until 10th March 2015, sued for unfair termination and terminal dues. The Respondent, served but absent at the hearing, admitted the employment but alleged that the Claimant had been transferred to its St. Kevin Matayos School in Busia County and deserted duty, and that documents the Claimant relied on were forged. It counterclaimed for one month's salary in lieu of notice. A partial consent recorded before Makau J on 12th June 2017 disposed of the claims for leave pay, salary underpayment and service pay. The Court framed three issues: desertion versus unlawful termination, entitlement to remedies, and the counterclaim. Applying the two-part test for desertion from its own jurisprudence, the Court held that the Respondent produced no evidence of efforts to reach the Claimant, and the Claimant's termination letter dated 10th March 2015 stood uncontroverted since the Respondent did not testify. It found the termination without justifiable cause under Section 43 and in violation of the procedural fairness requirements of Section 41 of the Employment Act. The Court awarded 10 months' salary in compensation and one month's notice pay, loading 15% on the Kshs. 7,000 salary in lieu of house allowance because the settled underpayment claim impacted that head. Overtime claims were dismissed as unproved; gratuity and NSSF claims were abandoned at trial. The counterclaim collapsed. Judgment of Kshs. 88,550 was entered with interest and costs to the Claimant.

Key legal issues

#
01

Whether the Claimant deserted duty or was unlawfully terminated

Holding

The Respondent failed to prove desertion; the Claimant's termination letter was uncontroverted and the termination was without justifiable cause and procedurally unfair.

Reasoning

Desertion must be proved by the employer. The Respondent merely stated generally that efforts were made to reach the Claimant but produced no evidence. The Claimant produced a termination letter dated 10th March 2015. The Respondent did not testify, so the Court found no reason to disbelieve the Claimant's account and held that the termination breached Sections 43 and 41 of the Employment Act.

p. 3
02

Whether the Claimant is entitled to the remedies sought

Holding

Compensation of 10 months' salary and one month's notice pay awarded, with 15% loaded on the salary in lieu of house allowance; overtime and other heads dismissed or abandoned.

Reasoning

In awarding compensation the Court considered length of service and the Respondent's conduct. There was no evidence that salary included house allowance, but since underpayment had been settled by consent and directly impacted the house allowance claim, the Court loaded 15% on the monthly salary of Kshs. 7,000 for purposes of the compensation and notice pay awards.

p. 3
03

Whether the Respondent made out a proper counterclaim

Holding

The counterclaim collapsed with the finding of unlawful termination and was dismissed.

Reasoning

The Respondent counterclaimed for one month's salary in lieu of notice on the basis that the Claimant deserted. Having found that it was the Respondent who unlawfully terminated the Claimant's employment, the foundation of the counterclaim fell away and the Court dismissed it.

p. 3

Legal principles established

#
  • An employer asserting desertion must demonstrate both the employee's intention not to resume duty and efforts made to reach the employee to put them on notice that termination on account of desertion is under consideration

Court orders

#
  1. 1.Judgment entered in favour of the Claimant for 10 months' salary in compensation of Kshs. 80,500
  2. 2.One month's salary in lieu of notice of Kshs. 8,050
  3. 3.Total award of Kshs. 88,550 with interest at court rates from the date of judgment until payment in full
  4. 4.Claim for overtime compensation on account of public holidays, off days and extra hours dismissed
  5. 5.Respondent's counterclaim dismissed
  6. 6.Claimant awarded costs of the case

Authorities

#

Legislation

  • Employment ActSection 43
  • Employment ActSection 41
  • Employment ActSection 31(1) and (2)

Cases cited (2)

  • Philemon Kiprotich Kirui v Lessos Veterinary Suppliers Ltd (CICADA Hotel)
    [2015] eKLR
  • Rashid Juma Ramadhan v Ready Consultancy Company Limited
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41 and 43 applied)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Reuben Kenyanya Simeka v Kevin Kepha Nyongesa t/a Kevin Hill Schools [2018] KEELRC 552 (KLR)", Case Analysis (2018). Memorandum of Claim dated 14th September 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/552/eng@2018-11-27

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