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ELRCPartially AllowedNot stated in the judgment as provided· [2019] KEELRC 2072 (KLR)

Mwenwa Sanare v Thames Electrical Limited [2019] KEELRC 2072 (KLR)

Employment and Labour Relations Court of Kenya
15 March 2019
OMOnesmus N. Makau
1,930 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled the worker deserted his job, not unfair termination, but still won unpaid salary and leave pay because the employer kept no records.

What this practically means

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Executive summary

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The claimant, employed as a security guard from 1998, sued for Kshs.316,512 arising from alleged unfair termination on 25.10.2010, comprising one month's salary in lieu of notice, 12 months' compensation, salary for days worked in October 2010, 21 leave days and 3 years' rest days. The respondent denied unfair termination, alleging the claimant absconded after being arrested on suspicion of theft at the premises. An earlier ex-parte judgment of 26.5.2016 was set aside by consent on 16.8.2016 and the suit heard afresh. The claimant testified that he was arrested at his employer's instigation and released after 4 days without charge, and never returned to work because his boss had caused his arrest. The respondent's manager (Rw1) admitted no show-cause letter or disciplinary hearing occurred, that the claimant's October salary was unpaid, and that the amended defence stated a termination letter was issued, though he maintained the claimant absconded. The court held that under section 47(5) of the Employment Act the burden of proving unfair termination lies on the employee, and since the claimant admitted he never reported back after release, the contract ended by desertion, not unfair termination. The claims for notice pay and compensation were dismissed. Salary for 25 days worked (Kshs.17,500) and 21 leave days (Kshs.14,700) were allowed, the latter because the employer, as custodian of leave records under section 74, produced none. The unpleaded rest-days claim was dismissed. Judgment of Kshs.32,200 with half costs and interest was entered, subject to statutory deductions.

Key legal issues

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01

Unfair termination or desertion

Holding

The claimant failed to prove unfair termination; he deserted his employment after release from police custody.

Reasoning

The claimant admitted that after release from 4 days in police custody he never reported back to work, choosing instead to report to his union and the labour office. The defence pleaded and adduced evidence of abscondment. Desertion, not termination by the employer, ended the contract.

p. 3
02

Salary for days worked in October 2010

Holding

Granted, as the respondent's manager admitted the salary for October 2010 was unpaid.

Reasoning

Rw1 admitted under cross-examination that the claimant was not paid his salary for October 2010. The court computed Kshs.18,200 x 25/26 = Kshs.17,500.

p. 3
03

Accrued leave days for 2010

Holding

Allowed because the employer produced no leave records to disprove the claim.

Reasoning

Under section 74 of the Employment Act the employer must keep and produce employment records including leave records. Failure to do so leads to the presumption that the claimant's allegation is true. The court awarded 21/26 x Kshs.18,200 = Kshs.14,700.

p. 3

Legal principles established

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  • The burden of proving unfair termination rests on the employee, and it does not shift to the employer until the termination is proved to have been done by the employer
  • An employee who absconds after lawful custody and fails to report back to work is treated as having deserted employment, defeating a claim of unfair termination
  • The employer is the custodian of employment records including leave records, and failure to produce them creates a presumption that the employee's allegation is true

Court orders

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  1. 1.Judgment entered for the claimant for Kshs.32,200
  2. 2.Half costs to the claimant
  3. 3.Interest at court rates from the date of filing the suit
  4. 4.The award is subject to statutory deductions
  5. 5.Dismissal of the claims for one month salary in lieu of notice, compensation for unfair termination, and the unpleaded claim for 3 years rest days

Authorities

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Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 49
  • Employment Actsection 74
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (section 47(5) and section 49 of the Employment Act invoked)

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, "Mwenwa Sanare v Thames Electrical Limited [2019] KEELRC 2072 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2072/eng@2019-02-15

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