Francis Musoma Musembi v RAA Limited [2018] KEELRC 2029 (KLR)
The bottom line
#A Kenyan court awarded a wrongly dismissed employee Kshs 585,000 because the employer called it 'desertion' but couldn't prove it or hold a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Desertion versus unfair termination
The Court found this was not a case of desertion; the allegation was unproved and no section 41 hearing was undertaken
The Respondent pleaded that the Claimant absconded when confronted to account for change after purchase of spare parts, but led no evidence at the required threshold to show the Claimant absconded with no intention of resuming. Even if desertion were established, it constituted misconduct requiring a hearing under section 41 of the Employment Act, 2007, which the Respondent neither took nor attempted.
Procedural fairness in termination
Termination was procedurally unfair for want of notice under section 35(1)(c) and a hearing under section 41
The Claimant testified that his boss verbally informed him his services were no longer required, and that testimony was unrebutted. The Respondent led no evidence of a hearing or of attempts to contact the Claimant to show cause. The termination therefore breached sections 35(1)(c) and 41 of the Employment Act, 2007.
Substantive fairness
The termination was not for valid and fair reasons; the Respondent failed to prove reasons under sections 43 and 45
Pursuant to sections 43 and 45 of the Employment Act, 2007, the burden lay on the Respondent to prove the reasons for terminating the Claimant's contract. The Respondent did not discharge that task, so the termination was not for valid and fair reasons, entitling the Claimant to pay in lieu of notice and compensation.
Leave pay, February 2015 wages and service pay
All awarded as uncontroverted; the employer failed to traverse pleadings or produce records
The Respondent did not traverse the leave pleadings or file leave records under section 10(3) and (7) of the Employment Act, the Claimant was not cross-examined on leave, and his testimony on unpaid February 2015 wages was unrebutted for want of pay records. Service pay at 15 days per completed year was contractual and the computation was not interrogated.
Respondent's counterclaim
Counterclaim for loan, advances and refund of change not proved and dismissed
The Respondent produced no evidence or witness to prove the counterclaim of Kshs 55,000/- as loan and advances and Kshs 1,795/- as un-surrendered change, leaving them mere allegations. The Claimant's testimony that a Kshs 50,000/- loan was deducted from the November and December 2014 payroll was not questioned in cross-examination.
Compensation
Maximum compensation of 12 months gross wages awarded given about 11 years of service
Considering the Claimant served the Respondent for about 11 years, the Court considered maximum compensation equivalent to 12 months gross wages appropriate, awarding Kshs 360,000/-.
Legal principles established
#- An employer alleging desertion must prove the employee absconded with no intention of resuming work, and even then must still afford a hearing under section 41 of the Employment Act
- An employee who shows grounds of unfair termination discharges the burden under section 47(5); the employer must prove reasons under sections 43 and 45
- Failure by an employer to traverse pleadings on leave or produce leave records results in a finding for the employee
Court orders
#- 1.Respondent to pay pay in lieu of notice of Kshs 30,000/-
- 2.Respondent to pay pay in lieu of leave of Kshs 30,000/-
- 3.Respondent to pay February 2015 wages of Kshs 15,000/-
- 4.Respondent to pay service pay of Kshs 150,000/-
- 5.Respondent to pay compensation equivalent to 12 months gross wages of Kshs 360,000/-
- 6.Total award of Kshs 585,000/-
- 7.Claimant denied costs for failing to file submissions as ordered
- 8.Counterclaim dismissed as unproved
- 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, "Francis Musoma Musembi v RAA Limited [2018] KEELRC 2029 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2029/eng@2018-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.