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ELRCPartially AllowedCause No 1324 of 2014· [2018] KEELRC 2491 (KLR)

Felistas Acheha Ikatwa v Charles Peter Otieno [2018] KEELRC 2491 (KLR)

Employment and Labour Relations Court
2 February 2018
LNLINNET NDOLOMOMAUREEN ONYANGO
1,171 words in judgment
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The bottom line

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A Kenyan employer who claims an employee deserted duty must prove they tried to trace and contact that employee, otherwise the termination is unfair.

What this practically means

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Executive summary

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The Claimant, employed as a house help from October 2007 at a monthly salary of Kshs. 7,000, sued for unfair termination, alleging her employment was terminated in June 2013 when she went on maternity leave. The Respondent admitted the employment but contended that the Claimant deserted duty after proceeding on maternity leave, and cross-claimed one month's salary in lieu of notice. The Respondent filed a Response but called no witnesses; the Claimant testified alone and both parties filed written submissions. The court framed two issues: whether the Claimant was unlawfully terminated or deserted duty, and the remedies due. Relying on the definition of desertion as wilful and unjustified abandonment of duties, distinguished from absence without leave by an intention not to return, and on the settled principle that an employer alleging desertion must demonstrate efforts to secure the employee's resumption of duty, the court found the Respondent had adduced no such evidence. It adopted the Claimant's testimony that the Respondent refused to employ someone with a baby, and held the termination unlawful. It awarded eight months' salary as compensation, one month's salary in lieu of notice, house allowance at 15% of basic salary (consolidating the monthly salary at Kshs. 8,050), service pay for five years, and leave pay for five years plus pro-rata leave, totaling Kshs. 195,942 with interest. A discrimination claim raised only in final submissions, being unpleaded and untested, was dismissed, as was the unproved underpayment claim. Judgment was entered for the Claimant with a certificate of service and costs.

Key legal issues

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01

Whether the Claimant's employment was unlawfully terminated or she deserted duty

Holding

The employment was unlawfully terminated; the desertion defence failed because the employer adduced no evidence of efforts to have the employee resume duty

Reasoning

The court adopted the definition of desertion as the wilful and unjustified abandonment of duties, distinguished from absence without leave by the intention not to return. Relying on Radido J in Onchweri and its own prior decision in Matingi, it held that an employer alleging desertion must show efforts to trace the employee and secure resumption of duty, including a notice that termination is contemplated. The Respondent called no witnesses and adduced no contrary evidence to the Claimant's testimony that the Respondent refused to employ her because she had a baby. The Claimant's version was therefore adopted.

p. 2
02

Whether the Claimant was entitled to service pay and leave pay

Holding

Service pay awarded as there was no evidence of NSSF contributions; leave pay awarded as the uncontroverted evidence was that she never went on leave

Reasoning

The court noted the absence of evidence that the Claimant was a contributing member of NSSF, which under the Employment Act would disqualify service pay, and so awarded it. On leave, the Claimant testified she never went on leave during employment, and in the absence of contrary evidence the claim succeeded. House allowance was awarded at 15% of basic salary under section 31 of the Employment Act because the Respondent did not show that the salary was consolidated to include a housing element.

p. 3
03

Whether the salary included house allowance

Holding

House allowance awarded at 15% of basic salary, with the monthly salary consolidated at Kshs. 8,050

Reasoning

Section 31(1) of the Employment Act obliges an employer to provide reasonable housing accommodation or pay a sufficient sum as rent, unless the contract consolidates a housing element into the wage. The Claimant was not housed, and the Respondent produced no evidence that the salary paid was inclusive of house allowance. The court therefore awarded house allowance at 15% of basic salary and adopted a consolidated monthly salary of Kshs. 8,050 for purposes of computing all the awards.

p. 3

Legal principles established

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  • An employer asserting that an employee has deserted duty must demonstrate efforts made to establish the whereabouts of the employee and to get the employee to resume duty, including at the very least a notice that termination on the ground of desertion is being considered.

Court orders

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  1. 1.8 months' salary in compensation of Kshs. 64,400
  2. 2.1 month's salary in lieu of notice of Kshs. 8,050
  3. 3.House allowance for 68 months of Kshs. 71,400
  4. 4.Service pay for 5 years of Kshs. 20,125
  5. 5.Leave pay for 5 years of Kshs. 28,210
  6. 6.Pro-rata leave for 8 months of Kshs. 3,757
  7. 7.Total judgment of Kshs. 195,942 with interest at court rates from the date of delivery of judgment until payment in full
  8. 8.Certificate of service for the Claimant
  9. 9.Costs of the case to the Claimant

Authorities

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Legislation

  • Employment ActSection 31(1) and (2)

Cases cited (3)

  • Seabolo v Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    [2015] eKLR
  • Dickson Matingi v Db Schenker Limited
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (unfair termination of employment claim under the Employment Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Felistas Acheha Ikatwa v Charles Peter Otieno [2018] KEELRC 2491 (KLR)", Case Analysis (2018). Cause No 1324 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2491/eng@2018-02-02

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