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ELRCPartially Allowed(Not stated in judgment - Memorandum of Claim dated 12th April 2016)· [2018] KEELRC 2060 (KLR)

Linus Ikabuteni v Excellent Security Services Limited [2018] KEELRC 2060 (KLR)

Employment and Labour Relations Court
10 May 2018
LNLinnet Ndolo
688 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employer who claims an employee deserted their job must prove they tried to contact them first, or the dismissal is unfair.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent from 2010 on a monthly salary of Kshs. 7,490, claimed that his employment was unlawfully terminated on 2nd December 2015 after he resumed duty from leave granted on 14th November 2015. He sought salary in lieu of notice, leave pay for 5 years, severance pay, compensation for unfair termination, a certificate of service, costs and interest. The Respondent filed a defence denying the employment relationship and alleging that the Claimant deserted duty, occasioning summary dismissal, but did not attend the trial despite due service. The Claimant testified alone and filed written submissions. The court framed two issues: whether the Claimant deserted duty or was unlawfully terminated, and whether he was entitled to the remedies sought. On the first issue, the court held that desertion, though a valid ground for dismissal, must be proved, and that an employer alleging desertion must show attempts to reach the employee and notify them that termination on account of desertion is under consideration. No such efforts were evident, so the desertion defence was rejected and the Claimant's assertion of unlawful termination was taken as admitted. On remedies, the court awarded six months' salary as compensation, one month's salary in lieu of notice under Section 35(1) of the Employment Act, 2007, and leave pay for 5 years, the Respondent having produced no leave records. Severance pay was refused as no basis was laid for it. Judgment was entered for the Claimant in the total sum of Kshs. 78,645, with interest at court rates from the date of judgment until payment in full, 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

The defence of desertion failed for want of proof; the termination was therefore unlawful

Reasoning

Desertion is a valid ground for dismissal but must be proved. The court, relying on its prior jurisprudence, held that an employer alleging desertion must show attempts to contact the employee and notify them that termination on account of desertion is under consideration. No such efforts were evident. The Respondent, though served, did not attend trial or adduce evidence. The desertion defence was rejected, and the Claimant's assertion of unlawful termination was taken as admitted.

p. 2
02

Whether the Claimant is entitled to the remedies sought

Holding

Compensation of six months' salary, one month's pay in lieu of notice and leave pay for 5 years were awarded; severance pay was refused

Reasoning

Having found the termination unlawful, the court awarded six months' salary as compensation, factoring in the length of service and the Respondent's conduct. One month's salary in lieu of notice was awarded under Section 35(1) of the Employment Act, 2007. Leave pay succeeded as the Respondent produced no leave records to counter it. Severance pay failed as no basis was laid for it. The Claimant also received a certificate of service, interest and costs.

p. 2

Legal principles established

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  • An employer relying on desertion must prove it, and must show attempts to reach the employee and notify them that termination on account of desertion is under consideration

Court orders

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  1. 1.Judgment entered in favour of the Claimant in the sum of Kshs. 78,645, being 6 months' salary in compensation (Kshs. 44,940), 1 month's salary in lieu of notice (Kshs. 7,490) and leave pay for 5 years (Kshs. 26,215)
  2. 2.The said amount to attract interest at court rates from the date of judgment until payment in full
  3. 3.The Claimant to be issued with a certificate of service
  4. 4.The Claimant awarded costs of the case

Authorities

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Legislation

  • Employment Act, 2007Section 35(1)

Cases cited (2)

  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    [2015] eKLR
  • Tirus Kariuki Mungai v Postal Corporation of Kenya
    [2016] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court under Article 162(2) of the Constitution (implied from the claim's subject matter)

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, "Linus Ikabuteni v Excellent Security Services Limited [2018] KEELRC 2060 (KLR)", Case Analysis (2018). (Not stated in judgment - Memorandum of Claim dated 12th April 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2060/eng@2018-05-10

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