Kevin Bwire Wandera v L.G. Harris & CO (E.A.) LTD [2019] KEELRC 1440 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant's employment was unlawfully terminated
The court rejected the defence of desertion and found the termination was verbal, without justifiable cause and in violation of due procedure
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.
Whether the Claimant was entitled to the remedies sought
Compensation of six months' salary and one month's salary in lieu of notice were awarded; the July 2015 salary claim was dismissed
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.
Legal principles established
#- 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
#- 1.Judgment entered in favour of the Claimant for 6 months' salary in compensation of Kshs. 85,674
- 2.1 month's salary in lieu of notice of Kshs. 14,279, totalling Kshs. 99,953
- 3.Interest at court rates from the date of delivery of the judgment until payment in full
- 4.Certificate of service to be issued to the Claimant
- 5.Costs of the case awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.