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ELRCPartially AllowedMemorandum of Claim dated 12th October 2015, filed 14th October 2015· [2019] KEELRC 1440 (KLR)

Kevin Bwire Wandera v L.G. Harris & CO (E.A.) LTD [2019] KEELRC 1440 (KLR)

Employment and Labour Relations Court
31 May 2019
1,098 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenyan employers cannot claim an employee deserted duty without proving they tried to contact the worker first—otherwise the dismissal is unlawful and costly.

What this practically means

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Executive summary

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This was an employment dispute in which Kevin Bwire Wandera claimed his employment by L.G. Harris & Co. (E.A.) Ltd as a general worker from 1st January 2013 was unlawfully terminated on 31st July 2015 on unproved allegations of theft. He sought July 2015 salary, salary in lieu of notice, compensation for loss of earnings, a certificate of service and costs. The Respondent admitted the employment relationship but denied terminating the Claimant, alleging he absconded duty after receiving his July 2015 salary. The court framed two issues: whether the termination was unlawful and whether the remedies sought were payable. On the evidence, the Respondent's Store Manager, Nilesh Shah, testified that the Claimant and two colleagues lost goods returned by a customer, conceded the loss, and were surcharged Kshs. 7,140, after which the Claimant allegedly absented himself. The court found this testimony unbelievable: the Respondent paid full July salary despite the alleged half-month worked; the Claimant, already surcharged, had no reason to flee; and the absence was too short to amount to desertion. Applying the principle that an employer alleging desertion must show steps to reach the employee and that desertion requires a demonstrable intention not to return, the court rejected the defence and found the termination verbal, unjustified and procedurally defective. The court awarded six months' salary in compensation (Kshs. 85,674) and one month's salary in lieu of notice (Kshs. 14,279), with interest, a certificate of service and costs. The July 2015 salary claim was dismissed as the Claimant admitted receiving it.

Key legal issues

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01

Whether the Claimant's employment was unlawfully terminated

Holding

The court rejected the defence of desertion and found the termination was verbal, without justifiable cause and in violation of due procedure

Reasoning

The Respondent's witness testified the Claimant absented himself from work in July 2015 and disappeared. The court found this testimony unbelievable because the Respondent paid full salary for July despite the alleged half-month worked, the Claimant had already been surcharged and had no reason to flee, and the absence was too short to constitute desertion. No steps to reach out to the employee were shown, so due procedure was not observed.

p. 2
02

Whether the Claimant was entitled to the remedies sought

Holding

Compensation of six months' salary and one month's salary in lieu of notice were awarded; the July 2015 salary claim was dismissed

Reasoning

Having found unlawful termination, the court awarded six months' salary as compensation, considering the Claimant's length of service and the Respondent's conduct in handling his case. One month's salary in lieu of notice was awarded. The July 2015 salary claim failed because the Claimant admitted receiving that salary.

p. 2

Legal principles established

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  • An employer relying on desertion must show steps taken to reach out to the deserting employee before terminating employment
  • What distinguishes desertion from absence is a demonstrable intention on the part of the employee not to return to work
  • Surcharge is itself a final disciplinary action; an employer cannot rely on the same conduct as a further ground without breaching the rule against double jeopardy

Court orders

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  1. 1.Judgment entered in favour of the Claimant for 6 months' salary in compensation of Kshs. 85,674
  2. 2.1 month's salary in lieu of notice of Kshs. 14,279, totalling Kshs. 99,953
  3. 3.Interest at court rates from the date of delivery of the judgment until payment in full
  4. 4.Certificate of service to be issued to the Claimant
  5. 5.Costs of the case awarded to the Claimant

Authorities

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Cases cited (2)

  • Kenya National Library Services Board v Beatrice N. Ayoti
    [2014] eKLR
  • Seablo v Belgravaria Hotel
    (1997) 6 BLLR 829 (CCMA)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes

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, "Kevin Bwire Wandera v L.G. Harris & CO (E.A.) LTD [2019] KEELRC 1440 (KLR)", Case Analysis (2019). Memorandum of Claim dated 12th October 2015, filed 14th October 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1440/eng@2019-05-31

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