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ELRCDismissedNot stated in the judgment· [2019] KEELRC 614 (KLR)

Benson Nthiwa Muthama & another v Nayan Products (K)Limited [2019] KEELRC 614 (KLR)

Employment and Labour Relations Court
25 October 2019
BOByram Ongaya
818 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled two long-serving employees deserted their jobs rather than being unfairly dismissed, ordering them to repay advances and the employer's legal costs.

What this practically means

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Executive summary

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Two claimants, employed by the respondent as a machine operator (1st claimant from about 1999/2000, 2nd claimant from 1998/1999), sued for unfair termination claiming notice pay, gratuity for 16 and 17 years respectively, 12 months' compensation and certificates of service, totalling Kshs.656,590.78. They alleged that in January 2016 a request for a Kshs.20,000.00 school fees advance from their manager, Nayan, annoyed him, and on 16.01.2016 each was paid Kshs.5,000.00 and told to leave employment. The respondent denied unfair termination, contending that the claimants had received Kshs.30,000.00 advances in December 2015, were each given Kshs.5,000.00 on 16.01.2016 and thereafter deserted duty; it counterclaimed Kshs.44,336.00 from each claimant. The court found the claimants' evidence on the events of 16.01.2016 contradictory and untrustworthy, preferring the respondent's account. It held that the claimants deserted duty after receiving the advance, did not resume even after the respondent telephoned to inquire, and went looking for other jobs; their unfair termination claims were unjustified and baseless. The counterclaim was found justified. Judgment was entered for the respondent: a declaration of desertion and no unfair termination; each claimant to pay Kshs.44,336.00 by 01.02.2020 failing interest at court rates; and the claimants to pay the respondent's costs including the counterclaim. The court also criticised the claimants for acting in an ungrateful and deceitful manner.

Key legal issues

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01

Whether the claimants were unfairly terminated or deserted duty

Holding

The court upheld the respondent's evidence and found the claimants deserted duty after receiving the advance; there was no unfair termination.

Reasoning

The claimants gave contradictory accounts of what transpired on 16.01.2016: the 2nd claimant said they were locked out while the 1st claimant said they were told to leave. The court found this contradiction fatal to their credibility and preferred the respondent's account that each was given a Kshs.5,000 advance and then deserted. Neither claimant reported on the Monday after 16.01.2016, and the respondent's director telephoned a claimant's wife to inquire about their absence. The 2nd claimant admitted they sought jobs elsewhere.

p. 2
02

Whether the respondent's counterclaim for repayment of advances was justified

Holding

The counterclaim for Kshs.44,336.00 from each claimant (Kshs.30,000.00 advance plus Kshs.14,336.00 pay in lieu of notice) was justified and awarded.

Reasoning

The claimants admitted receiving Kshs.30,000.00 each in December 2015 repayable at Kshs.5,000.00 per month and had not repaid it. The respondent also claimed Kshs.14,336.00 per claimant as pay in lieu of notice. Having found desertion rather than unfair termination, the court found the counterclaim justified and awarded it with interest if not paid by 01.02.2020.

p. 2

Legal principles established

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  • A claimant who abandons employment without lawful cause is taken to have deserted duty, and no finding of unfair termination can arise from such desertion, particularly where the employer attempted to contact the absconding employees.

Court orders

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  1. 1.Declaration that each claimant deserted duty after 16.01.2016 and there was no unfair termination of their respective contracts of service
  2. 2.Each claimant to pay the respondent Kshs.44,336.00 by 01.02.2020, failing which interest to run at court rates from the date of judgment until full payment
  3. 3.Claimants to pay the respondent's costs of the suit including the counterclaim
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (statement of claim filed under the Court's employment jurisdiction); no specific constitutional or statutory provision invoked in the judgment

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, "Benson Nthiwa Muthama & another v Nayan Products (K)Limited [2019] KEELRC 614 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/614/eng@2019-10-25

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