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ELRCPartially AllowedMemorandum of Claim dated 15th September 2017 (Cause - number not stated in judgment)· [2019] KEELRC 204 (KLR)

Daudi Msagha v Auto Continental Limited [2019] KEELRC 204 (KLR)

Employment and Labour Relations Court
2 December 2019
LNLinnet Ndolo
979 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who claims an employee deserted duty must prove they tried to reach the employee first, or the dismissal is unlawful and compensation follows.

What this practically means

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Executive summary

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The Claimant, a truck driver employed by the Respondent from 1st May 2011, claimed his employment was verbally terminated on 4th January 2016 without lawful cause or due process. He sought notice pay, leave pay, service pay, twelve months' compensation, overtime, public holiday pay, underpayment and off days. The Respondent admitted the employment but asserted the Claimant absconded duty on 16th September 2015, was cited for gross misconduct, was reinstated after union intervention, then failed to resume work after leave taken on 14th December 2015. The court framed two issues: whether the Claimant deserted duty or was unlawfully terminated, and the remedies payable. Applying the Seablo distinction between absenteeism and desertion, and Dickson Matingi v Db Schenker, the court held that an employer alleging desertion must demonstrate efforts to reach the employee and put them on notice of contemplated termination. No such effort was shown; the desertion allegation was unsupported, and the Claimant was found to have been unlawfully terminated. The court awarded six months' salary in compensation, one month's notice pay, and leave pay (the Respondent having produced no leave records), computing the award at Kshs. 297,733. Service pay was refused because the Claimant contributed to NSSF, and the overtime, public holiday, underpayment and off days claims were dismissed as unproved. The award attracts interest at court rates from the date of judgment, and the Claimant was awarded costs of the case.

Key legal issues

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01

Whether the Claimant absconded duty or was unlawfully terminated

Holding

The Respondent failed to prove desertion; the termination was unlawful and the Claimant entitled to compensation

Reasoning

The court drew a distinction between absenteeism and desertion, adopting the Seablo test: intention not to return may be deduced from facts such as lack of communication, duration of absence and employer attempts to reach the employee. The Respondent adduced no evidence of such efforts, rendering the desertion allegation unsupported and unverifiable, and failing to dislodge the claim of unlawful termination.

p. 2
02

Remedies payable

Holding

Six months' salary compensation, one month's notice pay and leave pay awarded; service pay denied due to NSSF contributions; overtime and allied claims dismissed as unproved

Reasoning

Compensation was assessed at six months' salary taking into account length of service, employment record and the Respondent's conduct in the termination. Leave pay succeeded because the Respondent produced no leave records. Service pay was barred by NSSF membership. The unquantified and unproved heads (overtime, public holidays, underpayment, off days) failed for want of proof.

p. 2

Legal principles established

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  • Desertion of duty is a serious offence attracting summary dismissal but must be proved by the employer
  • An employer alleging desertion must demonstrate efforts made to reach the employee and put them on notice that termination on account of desertion is being considered

Court orders

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  1. 1.Judgment entered in favour of the Claimant for Kshs. 297,733 (six months' salary compensation Kshs. 174,000; one month's salary in lieu of notice Kshs. 29,000; leave pay for 4 years Kshs. 81,200; prorata leave for 8 months Kshs. 13,533)
  2. 2.Interest at court rates on the award from the date of judgment until payment in full
  3. 3.Claimant awarded costs of the case
  4. 4.Claims for overtime, public holidays, underpayment, off days and service pay dismissed

Authorities

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Legislation

  • Employment Actservice pay provisions (implied by NSSF entitlement discussion)

Cases cited (2)

  • Seablo v Belgravia Hotel (1997) 6 BLLR 829 (CCMA)
    (1997) 6 BLLR 829
  • Dickson Matingi v Db Schenker Limited [2016] eKLR
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (statutory employment claim); specific provision not cited

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, "Daudi Msagha v Auto Continental Limited [2019] KEELRC 204 (KLR)", Case Analysis (2019). Memorandum of Claim dated 15th September 2017 (Cause - number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/204/eng@2019-12-02

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