Rose Mwita Boke v Naku Sacco Society Limited [2018] KEELRC 2387 (KLR)
The bottom line
#Kenyan employers who lack written employment contracts and ignore desertion procedures will lose unfair dismissal cases and pay compensation plus costs.
What this practically means
#Executive summary
#Key legal issues
#Nature of the Claimant's employment (probation or permanent)
The court rejected the Respondent's claim of probationary employment, found the employment commenced October 2010 and that the Claimant was a permanent employee
Probationary employment must be in writing under Section 2 of the Employment Act, 2007. Since no letter of appointment was issued, the court invoked Section 10(7) and adopted the Claimant's pleaded start date of October 2010. The Respondent's CEO further admitted in cross-examination that the Claimant was a permanent employee.
Whether the Claimant deserted duty or was unlawfully dismissed
The court found unlawful and unfair dismissal, rejecting the desertion and banking-system manipulation allegations
The employer produced no evidence of specific efforts to trace the allegedly deserting employee and put her on notice, as required by the settled law on desertion. No investigation report was produced to substantiate the allegation of interference with the banking system, and the officials said to have confronted the Claimant were not called as witnesses. The court believed the Claimant's testimony.
Entitlement to remedies
Six months' salary compensation, one month's notice pay, leave pay for 2 years, certificate of service and costs awarded
In fixing compensation at six months' salary, the court considered the Claimant's length of service and the Respondent's conduct prior to dismissal. Leave pay was allowed in the absence of leave records, and salary for 5 days in October 2012 was awarded.
Legal principles established
#- The responsibility for documenting the employment relationship lies with the employer; failing this, the court may invoke Section 10(7) of the Employment Act and adopt the employee's testimony on terms of employment
- An employer relying on desertion to justify dismissal must demonstrate the efforts made towards finding the deserting employee and at the very least put the employee on notice that dismissal is being considered
Court orders
#- 1.6 months' salary in compensation for unlawful dismissal (Kshs. 120,000)
- 2.1 month's salary in lieu of notice (Kshs. 20,000)
- 3.Leave pay for 2 years (Kshs. 28,000)
- 4.Less loan balance owed by the Claimant (Kshs. 26,000), net amount payable Kshs. 142,000
- 5.Interest at court rates from the date of delivery of judgment until payment in full
- 6.Claimant entitled to a certificate of service
- 7.Costs of the case to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination claims under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Mwita Boke v Naku Sacco Society Limited [2018] KEELRC 2387 (KLR)", Case Analysis (2018). Memorandum of Claim dated 13th May 2014, filed 19th May 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2387/eng@2018-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.