George Ogolla Ondoro v New World Stainless Steel Ltd [2019] KEELRC 1397 (KLR)
The bottom line
#Even when an employee deserts duty in Kenya, an employer must still follow fair procedure before treating the job as over, or face consequences.
What this practically means
#Executive summary
#Key legal issues
#Commencement of employment relationship
Employment commenced on 9 July 2007, not October 1996 as alleged
The Claimant produced pay slips from 2000 to 2014, some showing a different entity (New World Industries Ltd) as employer. The Respondent produced contracts from 9 July 2007 and a certificate of incorporation dated 2 July 2007. Since a company has no legal existence before incorporation, it could not have employed the Claimant earlier, so employment ran from the first contract date.
Desertion versus dismissal
The evidence was consistent with desertion rather than dismissal
The Claimant alleged oral termination by Satyin Bhalla on 7 September 2014; the Respondent's Director denied this and produced a muster roll showing attendance up to 7 October 2014 and a letter to the District Labour Office dated 16 October 2014 reporting desertion, stamped as received. The pre-litigation date of that letter lent credence to the desertion narrative.
Procedural fairness despite desertion
The Respondent committed procedural impropriety by not notifying the Claimant that it considered the contract at an end
Although desertion would justify summary dismissal under section 44(4), summary dismissal is circumscribed by section 41(2). The Respondent's witness admitted no attempt was made to reach the Claimant to explain his whereabouts or to hear him, so sections 41(1) and (2) were not complied with.
Counterclaim for loan balance
The Claimant received a Kshs 50,000/- loan; balance of Kshs 28,000/- as pleaded allowed
A witnessed loan agreement showed a loan of Kshs 50,000/- repayable over 6 months. Though the witness was not called, the court found it more probable the full sum was advanced, with deductions of Kshs 21,000/- leaving Kshs 29,000/-. Since the pleaded balance was Kshs 28,000/-, only that sum was awarded.
Legal principles established
#- A company cannot employ a person before its incorporation; the employment relationship commenced on the date of the first contract after incorporation
- Desertion of duty attracts summary dismissal under section 44(4) of the Employment Act but is subject to the procedural requirements of section 41
- Failure to afford an employee an opportunity to be heard before treating the contract as at an end constitutes procedural impropriety
- An employee contributing to NSSF is not eligible for service pay under section 35(5) and (6) of the Employment Act
- An employer who did not notify the employee that it considered the contract at an end cannot recover pay in lieu of notice on the counterclaim
Court orders
#- 1.Award to the Claimant of prorated leave for 2014
- 2.Award to the Claimant of 7 days wages for September 2014 of Kshs 6,766/-
- 3.Finding in favour of the Respondent on the counterclaim of Kshs 28,000/-
- 4.The Respondent to reconcile the awards and pay any balances to the Claimant
- 5.The Respondent to issue a certificate of service to the Claimant within 15 days
- 6.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (unfair termination and counterclaim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Ogolla Ondoro v New World Stainless Steel Ltd [2019] KEELRC 1397 (KLR)", Case Analysis (2019). Not stated in the judgment (Cause between George Ogolla Ondoro and New World Stainless Ltd). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1397/eng@2019-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.