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ELRCPartially AllowedMemorandum of Claim dated 7th November 2016, filed 8th November 2016· [2018] KEELRC 554 (KLR)

Julius Mwangolo Mwatua v Raisons Distributors Limited [2018] KEELRC 554 (KLR)

Employment and Labour Relations Court
27 November 2018
879 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 by the Respondent from 1st August 2005, claimed unfair termination of employment. He stated that after a road traffic accident in the course of duty on 1st April 2014, the Respondent sent him on compulsory and unpaid leave and never recalled him. The Respondent asserted that the Claimant absconded after the accident and could not be traced, and by counterclaim sought one month's salary in lieu of notice. The Court framed three issues: whether the Claimant deserted duty or was unlawfully terminated; his entitlement to remedies; and the propriety of the counterclaim. Applying the principle that desertion, as gross misconduct, must be proved and that an employer alleging desertion must show efforts to reach the employee (citing Stanley Omwoyo and Dickson Matingi), the Court found no evidence of such efforts. The Respondent also did not call a witness to challenge the Claimant's uncontradicted testimony. Desertion therefore failed, and the Court held the employment was unlawfully and unfairly terminated. The Court awarded 10 months' salary in compensation, considering length of service, employment record and the Respondent's conduct, plus one month's notice pay and prorata leave for 2014, totalling Kshs. 180,013 with interest at court rates. Service pay was refused because the Claimant was a contributing NSSF member. The counterclaim failed. Judgment was entered for the Claimant with a certificate of service and costs of the case.

Key legal issues

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01

Whether the Claimant deserted duty or was unlawfully terminated

Holding

Desertion was not proved; the Claimant's employment was unlawfully and unfairly terminated.

Reasoning

Desertion of duty is gross misconduct which must be proved. The emerging jurisprudence requires an employer alleging desertion to demonstrate efforts made to reach the employee. The Respondent adduced no evidence of such efforts and did not call any witness to challenge the Claimant's testimony that he was sent away following an accident in the course of duty, which was consistent with the Respondent's admission of the accident.

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02

Whether the Claimant is entitled to the remedies sought

Holding

Awarded 10 months' salary compensation, 1 month's notice pay and prorata leave for 2014; service pay refused due to NSSF membership.

Reasoning

In light of the finding of unfair termination, the Court awarded 10 months' salary compensation, taking into account the length of service, employment record and the Respondent's conduct. One month's notice pay and prorata leave for 2014 were also awarded. Service pay was declined because the Claimant was a contributing NSSF member. A certificate of service was granted as of entitlement.

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03

Whether the Respondent has made out a proper counterclaim

Holding

The counterclaim of Kshs. 16,000 in lieu of notice failed as no proper counterclaim was established.

Reasoning

The Respondent's counterclaim for one month's salary in lieu of notice was not made out. The court entered judgment only in favour of the Claimant and made no order on the counterclaim, effectively dismissing it. The Respondent did not avail a witness to support its assertions of desertion and breach.

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Legal principles established

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  • An employer alleging desertion of duty must prove it and demonstrate efforts made to reach out to the deserting employee.

Court orders

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  1. 1.Judgment for the Claimant of Kshs. 180,013 comprising 10 months' salary in compensation (Kshs. 160,000), 1 month's salary in lieu of notice (Kshs. 16,000) and prorata leave for 2014 (Kshs. 4,013)
  2. 2.Interest on the decretal sum at court rates from the date of judgment until payment in full
  3. 3.Claimant entitled to a certificate of service
  4. 4.Claimant awarded costs of the case
  5. 5.Counterclaim by the Respondent fails
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination of employment claims

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, "Julius Mwangolo Mwatua v Raisons Distributors Limited [2018] KEELRC 554 (KLR)", Case Analysis (2018). Memorandum of Claim dated 7th November 2016, filed 8th November 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/554/eng@2018-11-27

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