Gerald Maku Mwangi v Njuca Consolidated Co. Ltd [2018] KEELRC 2093 (KLR)
The bottom line
#A Mombasa employment court ruled that firing a worker for 'desertion' without first trying to reach them is unfair termination, awarding Kshs. 486,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant deserted duty or was unlawfully terminated
The Claimant was still an employee when he indicated willingness to resume work; the Respondent failed to prove desertion and was guilty of unfair termination.
The Respondent called no evidence to counter the Claimant's testimony and continued paying his salary until July 2016, contradicting its claim that employment ended in February 2016. No evidence of efforts to notify the Claimant of impending termination for desertion was adduced. Desertion requires intention not to return, which must be demonstrated by the employer, including attempts to reach the employee and a show-cause notice.
Whether the Claimant is entitled to the remedies sought
Awarded 8 months' salary in compensation and 1 month's salary in lieu of notice; leave pay claim dismissed.
Compensation took into account length of service and the Respondent's conduct in the termination process. The leave claim failed because the leave application form showed no accrued leave balance. The salary dispute was resolved by adopting the Claimant's testified figure of Kshs. 54,000 under Section 10(7) of the Employment Act, since the employer bore the responsibility of documenting the employment relationship under Section 9(2).
Legal principles established
#- Not every absence from duty amounts to desertion; an employee is entitled to prior notice before termination on account of desertion.
- An employer asserting desertion must demonstrate attempts made to reach the employee.
- Where the employer fails to document the employment relationship, the court adopts the employee's testimony on salary.
Court orders
#- 1.8 months' salary in compensation for unfair termination - Kshs. 432,000
- 2.1 month's salary in lieu of notice - Kshs. 54,000
- 3.Total judgment of Kshs. 486,000 with interest at court rates from the date of judgment until payment in full
- 4.Claimant to have the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Godhana Said Omar v Board of Governors Wiyoni Secondary School [2020] KEELRC 1646 (KLR)[2020] KEELRC 1646 (KLR)10 Feb 2020applied
Cite this brief
#Cite this brief
Caselaw, "Gerald Maku Mwangi v Njuca Consolidated Co. Ltd [2018] KEELRC 2093 (KLR)", Case Analysis (2018). Memorandum of Claim dated 27th January 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2093/eng@2018-05-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.