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ELRCPartially AllowedMemorandum of Claim dated 5th July 2017, filed 7th July 2017 (Malindi)· [2018] KEELRC 1115 (KLR)

Kenga Cheupe v China Jiangxi International Kenya Limited [2018] KEELRC 1115 (KLR)

Employment and Labour Relations Court
27 September 2018
1,373 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employer who claims an employee deserted duty must prove they tried to trace the worker, otherwise the dismissal is unfair and compensation follows.

What this practically means

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Executive summary

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The Claimant, Kenga Cheupe, sued his former employer, China Jiangxi International Kenya Limited, for unlawful and unfair termination of employment. He said he was employed from June 2014 until 6th January 2017, initially as a casual and later on term contract, and that on 6th January 2017 he was refused entry into the premises and told his employment had ended, without valid reason or a hearing. He sought notice pay, leave pay, twelve months' compensation, remittance of NSSF dues, a certificate of service and costs. The Respondent denied the claims, asserting he was a casual who deserted duty after the December 2016 holidays, and counterclaimed for one month's salary in lieu of notice. The court framed four issues. On employment status, the Respondent admitted no written contract existed and produced no records, so under Section 10(7) of the Employment Act the court adopted the Claimant's averment that he was a regular employee on term contract. On desertion, the court held that an employer alleging desertion must show efforts to trace the employee and issue notice; the Respondent made no such effort and called no evidence, so its pleadings remained mere statements and the termination was found unlawful and unfair, with no compliance with Sections 41 and 43 of the Employment Act. The court awarded six months' salary in compensation, one month's notice pay, and leave pay, total Kshs. 170,625 with interest; the NSSF claim and the counterclaim were dismissed. The Claimant also received a certificate of service and costs.

Key legal issues

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01

Nature and status of the Claimant's employment

Holding

Claimant was a regular employee on term contract, not a casual

Reasoning

The Respondent pleaded the Claimant was a casual but admitted he had an off day after six days of work and failed to produce records. Since the Respondent did not issue a written contract as required by law, Section 10(7) of the Employment Act allowed the court to adopt the Claimant's own averment of his employment status.

p. 2
02

Desertion or unlawful termination

Holding

Desertion not proved; termination was unlawful and unfair

Reasoning

Desertion must be proved by showing efforts to trace the employee and by issuing notice. The Respondent made no such effort and called no evidence. Its pleadings remained mere statements. There was no compliance with Sections 41 and 43 of the Employment Act on termination, entitling the Claimant to compensation.

p. 2
03

Remedies

Holding

Six months' salary compensation, one month's notice pay, leave pay awarded; NSSF claim dismissed

Reasoning

The court considered the Claimant's length of employment and the Respondent's conduct in the termination process in awarding six months' salary. Leave pay succeeded because the Respondent conceded annual leave was not granted. The NSSF claim failed for want of proof.

p. 3
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Respondent's counterclaim

Holding

Counterclaim for one month's salary in lieu of notice dismissed

Reasoning

The counterclaim rested on the allegation of desertion, which was not supported by evidence, and therefore failed.

p. 3

Legal principles established

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  • In the absence of a written contract or records, the employee's own averment as to terms of employment is adopted under Section 10(7) of the Employment Act
  • An employer alleging desertion must show efforts to trace the employee and issue notice before dismissal
  • Pleadings unsupported by evidence are mere statements

Court orders

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  1. 1.Judgment entered in favour of the Claimant for Kshs. 170,625 comprising 6 months' salary in compensation (Kshs. 117,000), 1 month's salary in lieu of notice (Kshs. 19,500), leave pay for 2 years (Kshs. 27,300) and prorata leave for 6 months (Kshs. 6,825)
  2. 2.Interest at court rates from the date of judgment until payment in full
  3. 3.Claimant to be issued with a certificate of service
  4. 4.Respondent to pay the costs of the case
  5. 5.Respondent's counterclaim dismissed
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)

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, "Kenga Cheupe v China Jiangxi International Kenya Limited [2018] KEELRC 1115 (KLR)", Case Analysis (2018). Memorandum of Claim dated 5th July 2017, filed 7th July 2017 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1115/eng@2018-09-27

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