Kenga Cheupe v China Jiangxi International Kenya Limited [2018] KEELRC 1115 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Nature and status of the Claimant's employment
Claimant was a regular employee on term contract, not a casual
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.
Desertion or unlawful termination
Desertion not proved; termination was unlawful and unfair
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.
Remedies
Six months' salary compensation, one month's notice pay, leave pay awarded; NSSF claim dismissed
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.
Respondent's counterclaim
Counterclaim for one month's salary in lieu of notice dismissed
The counterclaim rested on the allegation of desertion, which was not supported by evidence, and therefore failed.
Legal principles established
#- 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
#- 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.Interest at court rates from the date of judgment until payment in full
- 3.Claimant to be issued with a certificate of service
- 4.Respondent to pay the costs of the case
- 5.Respondent's counterclaim dismissed
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.