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ELRCPartially AllowedMemorandum of Claim filed 26th January 2017· [2018] KEELRC 2018 (KLR)

Erick Gitau Kamau v Jiwani Impex Limited [2018] KEELRC 2018 (KLR)

Employment and Labour Relations Court
18 May 2018
LNLinnet Ndolo
1,272 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employer cannot call an employee a deserter if it kept paying their salary during their absence from work.

What this practically means

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Executive summary

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The Claimant, Erick Kamau Gitau, sued his former employer, Jiwani Impex Limited, for compensation for unfair termination and terminal dues, claiming two months' salary in lieu of notice, leave pay for 2016, gratuity for four years, and twelve months' salary in compensation. The Respondent admitted employing the Claimant but contended he was engaged on humanitarian grounds, had habitually absented himself from work, and had ultimately agreed to retire on medical grounds. The termination was effected by an unsigned letter dated 8th November 2016 citing incompetence due to age and recurring sickness. The Court framed two issues: whether the termination was lawful and fair, and whether the Claimant was entitled to the remedies sought. The Court rejected the desertion defence, finding that the Respondent continued paying the Claimant's salary during his absence, thereby acquiescing in it, and that an employee who returns to work cannot be a deserter, applying the Sarafina Wanyonyi decision. With desertion falling away, only illness and old age remained as grounds, which the Court found insufficient, noting the Claimant planned to retire in December 2016 and the termination came a month early. The Court awarded one month's salary in compensation, one month's salary in lieu of notice, and leave pay for 24 days for 2016, totalling Kshs. 90,160 with interest at court rates from the date of judgment. The claim for gratuity was dismissed for lack of basis. Costs were awarded to the Claimant. The suit therefore succeeded in part.

Key legal issues

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01

Whether the termination of the Claimant's employment was lawful and fair

Holding

The Respondent failed to prove desertion since the Claimant returned to work and continued receiving salary during absence; termination on grounds of incompetence due to age and recurring sickness was not justified.

Reasoning

The termination letter cited incompetence due to age and recurring sickness. The Respondent claimed the Claimant had absconded, but the Court found the employer continued paying salary during the absence, showing awareness and acquiescence. The desertion ground failed as the Claimant returned to work. The Court accepted that retirement was a reasonable prospect for a driver past 70, treating the termination as effectively one month early.

p. 2
02

Whether the Claimant is entitled to the remedies sought

Holding

The Claimant was awarded one month's salary in compensation, one month's salary in lieu of notice, and leave pay for 24 days for 2016; gratuity was dismissed.

Reasoning

The Court awarded compensation limited to one month's salary since the termination came only a month before the Claimant's planned retirement, with the loss confined to December 2016 salary. Notice pay was awarded as the Claimant did not serve the full notice period. The Respondent's set-off of absent days against leave was rejected, and leave pay for 24 days was awarded. Gratuity failed for want of a basis.

p. 3

Legal principles established

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  • Desertion by an employee is presumed only in cases where the employee has demonstrated that they have no intention to come back
  • An employer who continues paying an employee's salary during absence cannot later brand the employee a deserter

Court orders

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  1. 1.1 month's salary in compensation of Kshs. 32,200
  2. 2.1 month's salary in lieu of notice of Kshs. 32,200
  3. 3.Leave pay for 24 days (Kshs. 25,760)
  4. 4.Total judgment of Kshs. 90,160 with interest at court rates from the date of judgment until payment in full
  5. 5.Costs of the case awarded to the Claimant

Authorities

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Cases cited (1)

  • Sarafina Wanyonyi v Lessos Veterinary Suppliers Ltd
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over claims for unfair termination and terminal dues

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, "Erick Gitau Kamau v Jiwani Impex Limited [2018] KEELRC 2018 (KLR)", Case Analysis (2018). Memorandum of Claim filed 26th January 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2018/eng@2018-05-18

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