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ELRCDismissedCause No 1718 of 2015· [2019] KEELRC 1500 (KLR)

Abednego Musyoki Wambua v Prideinn Hotels And Investments Limited [2019] KEELRC 1500 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
17 May 2019
ANAbuodha J. N.
1,138 words in judgment
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The bottom line

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Kenya's Employment Court dismissed a cleaner's unfair termination claim because his employer kept biometric attendance records proving chronic absenteeism.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a cleaner from 1st October 2011 at a monthly salary of Kshs 8,000/- exclusive of house allowance, sued for unfair termination following the termination of his employment in July 2015. He alleged he had no letter of appointment, worked unpaid overtime, and was dismissed after being questioned about a single off-day approved by the head chef. The respondent contended the claimant was chronically absent from duty without leave, had received several warnings, and was lawfully issued with one month's notice of termination. At trial, the claimant adopted his witness statement and acknowledged the clocking-in policy. The respondent's Human Resource Manager, Nicholas Ochieng, gave evidence that the claimant's attendance was shown in a biometric report which revealed a constant trend of absenteeism. The claimant claimed his absences were leave or off-days but produced no leave forms or other supporting evidence. Relying on section 43(2) of the Employment Act, the court held that the employer had a genuine belief, founded on the attendance records, that the claimant was frequently absent without lawful cause. It further noted that the claimant, having been issued one month's notice, refused to work during the notice period and left immediately, which supported the respondent's case. The court found a valid reason existed for the termination, held the claim to be without merit, dismissed it, and awarded costs to the respondent. Judgment was delivered at Nairobi on 17th May 2019 by Abuodha J. N.

Key legal issues

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01

Whether there was a valid reason for termination

Holding

Yes - frequent absenteeism without lawful cause was established by the biometric analysis report, and the claimant produced no evidence of leave or off-duty to explain his absences

Reasoning

The court applied section 43(2) of the Employment Act, which looks to the reasons the employer genuinely believed to exist. The respondent produced a biometric analysis report showing a constant trend of absenteeism. The claimant asserted he was on leave or off-days but never produced any supporting evidence such as leave forms. His refusal to work after being issued a termination notice further corroborated the respondent's case.

p. 2
02

Whether the termination followed fair procedure

Holding

The court treated the issuance of one month's notice of termination as satisfying the respondent's obligation; the claimant's failure to serve the notice period undermined his claim

Reasoning

The respondent issued one month's notice of termination rather than a summary dismissal, which the claimant did not serve. The court reasoned that an employee under notice remains an employee until the notice period expires, and the claimant's immediate departure supported the respondent's account of chronic absenteeism. No procedural breach was found.

p. 2

Legal principles established

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  • The reasons for termination are those the employer genuinely believed to exist at the time of termination
  • An employee served with a notice of termination remains in employment until the notice period lapses

Court orders

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  1. 1.The claim is found without merit and is dismissed
  2. 2.The claimant to pay costs of the suit to the respondent

Authorities

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Legislation

  • Employment Actsection 43(2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (employment dispute 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, "Abednego Musyoki Wambua v Prideinn Hotels And Investments Limited [2019] KEELRC 1500 (KLR)", Case Analysis (2019). Cause No 1718 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1500/eng@2019-05-17

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