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ELRCPartially AllowedMemorandum of Claim dated 27th January 2017· [2018] KEELRC 2093 (KLR)

Gerald Maku Mwangi v Njuca Consolidated Co. Ltd [2018] KEELRC 2093 (KLR)

Employment and Labour Relations Court
3 May 2018
1,353 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, employed by the Respondent from May 2012 as General Foreman/Site Manager, was injured in a workplace accident on 22nd September 2015 while working on a drainage line project. He claimed his employment was unfairly terminated after the injury and sought notice pay, 12 months' compensation and leave pay. The Respondent admitted employing him but contended he was injured while outside his line of duty, that it paid his salary and medical expenses out of goodwill, and that he deserted duty after failing to provide a medical certificate. The Respondent called no witnesses. The court framed two issues: whether the Claimant deserted duty or was unlawfully terminated, and entitlement to remedies. It found that the Respondent continued paying salary until July 2016, contradicting the claim of termination in February 2016, and concluded the Claimant was still an employee when he indicated readiness to resume work. Relying on South African authority and its own precedent, the court held that not every absence amounts to desertion and an employer must demonstrate attempts to reach the employee and give notice before termination for desertion. It found the Respondent guilty of unfair termination and awarded 8 months' salary in compensation and 1 month's notice pay, totalling Kshs. 486,000, adopting the Claimant's testified salary of Kshs. 54,000 under Section 10(7) of the Employment Act since the employer failed to document the relationship. The leave pay claim was dismissed as the leave form showed no accrued balance. The award attracts interest, and the Claimant received costs.

Key legal issues

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01

Whether the Claimant deserted duty or was unlawfully terminated

Holding

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.

Reasoning

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.

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02

Whether the Claimant is entitled to the remedies sought

Holding

Awarded 8 months' salary in compensation and 1 month's salary in lieu of notice; leave pay claim dismissed.

Reasoning

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).

p. 2

Legal principles established

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  • 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

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  1. 1.8 months' salary in compensation for unfair termination - Kshs. 432,000
  2. 2.1 month's salary in lieu of notice - Kshs. 54,000
  3. 3.Total judgment of Kshs. 486,000 with interest at court rates from the date of judgment until payment in full
  4. 4.Claimant to have the costs of the case

Authorities

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Legislation

  • Employment Act, 2007Section 9(2)
  • Employment Act, 2007Section 10(7)

Cases cited (3)

  • Seabolo v Belgravia Hotel (1997) 6 BLLR 829 (CCMA)
    (1997) 6 BLLR 829
  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School [2015] eKLR
    [2015] eKLR
  • Tirus Kariuki Mungai v Postal Corporation of Kenya [2016] eKLR
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.