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ELRCPartially AllowedMemorandum of Claim dated 17th March 2015, filed 18th March 2015· [2019] KEELRC 969 (KLR)

Joseph Irungu Mwangi v Deep Blue Enterprises Kenya Limited [2019] KEELRC 969 (KLR)

Employment and Labour Relations Court
16 July 2019
LNLinnet NdoloMOMaureen Onyango
1,137 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an employee Kshs. 194,400 because his employer could not prove he deserted the job or that the dismissal was fair.

What this practically means

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Executive summary

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The Claimant, employed as a Caretaker from 1st April 2008, claimed compensation for unlawful termination of his employment on 18th March 2014 and terminal dues. He sought twelve months' salary for lost earnings, unpaid overtime, service pay, unpaid leave and one month's salary in lieu of notice. The Respondent admitted the employment but alleged the Claimant was an accounting clerk who deserted duty in February 2014 with money collected for utility bills, resulting in automatic termination, and that he was lawfully summarily dismissed for gross misconduct under Section 44(4)(a) and (e) of the Employment Act. The court framed two issues: whether the termination was unlawful, and the entitlement to remedies. It held that desertion must be proved and distinguished from absence without leave, and that an employer alleging desertion must show efforts to reach the employee and put them on notice. The Respondent made no such efforts; its Director testified she could not work with employees hired by her late husband, indicating an intention to dismiss them. There was no valid reason under Section 43 and no procedural fairness under Section 41, so the termination was unlawful and unfair. The court awarded eight months' salary in compensation, one month's salary in lieu of notice, leave pay for six years and service pay for six years, having invoked Section 10(7) to adopt the pleaded salary of Kshs. 12,000. The overtime claim was dismissed as unproved. Total judgment of Kshs. 194,400 with interest at court rates from the date of judgment until payment in full, and costs to the Claimant.

Key legal issues

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01

Whether the termination of the Claimant's employment was lawful and fair

Holding

The Respondent failed to show a valid reason under Section 43 and failed to follow the procedural fairness requirements under Section 41 of the Employment Act; the desertion defence was not available as no efforts to reach the Claimant were demonstrated.

Reasoning

The Respondent alleged desertion but made no efforts to contact the Claimant or put him on notice. Its Director testified she could not work with employees hired by her late husband, showing an intention to get rid of them. No valid reason or procedure was shown, rendering the termination unlawful and unfair.

p. 2
02

Whether the Claimant was entitled to leave pay and service pay

Holding

Leave claim succeeded absent leave records showing exhaustion of annual leave; service pay awarded absent evidence of NSSF or pension contributions.

Reasoning

The employer bore the obligation to keep employment records. With no leave records showing the leave had been exhausted, and no evidence of NSSF or pension contributions, the claims for leave pay and service pay succeeded.

p. 2
03

The applicable monthly salary

Holding

The Claimant's pleaded figure of Kshs. 12,000 was adopted under Section 10(7) because the Respondent failed to document the terms of employment.

Reasoning

The employer is under an obligation to document the terms of employment. Having failed to do so, the court invoked Section 10(7) of the Employment Act and adopted the Claimant's pleaded salary of Kshs. 12,000.

p. 2

Legal principles established

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  • Desertion must be distinguished from absence without leave and, like all grounds for dismissal, must be proved by the employer.
  • An employer alleging desertion must show efforts made to reach out to the employee to put them on notice that termination on that ground is under consideration.
  • Where the employer fails to document the terms of employment, the court may adopt the salary pleaded by the employee under Section 10(7) of the Employment Act.

Court orders

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  1. 1.8 months' salary in compensation of Kshs. 96,000
  2. 2.1 month's salary in lieu of notice of Kshs. 12,000
  3. 3.Leave pay for 6 years of Kshs. 50,400
  4. 4.Service pay for 6 years of Kshs. 36,000
  5. 5.Total judgment of Kshs. 194,400 with interest at court rates from the date of delivery of judgment until payment in full
  6. 6.Claimant to have the costs of the case
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act

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, "Joseph Irungu Mwangi v Deep Blue Enterprises Kenya Limited [2019] KEELRC 969 (KLR)", Case Analysis (2019). Memorandum of Claim dated 17th March 2015, filed 18th March 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/969/eng@2019-07-26

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