Matho Kaingu Kalama v Beaumont Resort Limited [2019] eL;R [2019] KEELRC 2307 (KLR)
The bottom line
#A Kenyan employer lost an unfair termination case because it couldn't prove it tried to contact an employee it accused of deserting duty.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant deserted duty or was unlawfully terminated
The Claimant did not desert duty; the Respondent terminated his employment without justifiable cause and in violation of due procedure
The Court held that desertion is a grave administrative offence but an employer alleging it must show efforts to reach the employee, including notifying him that termination for desertion is being considered. The Respondent produced no evidence that the Claimant was summoned to explain his absence. The desertion claim was unsupported and rejected, leaving only the conclusion of unlawful and unfair termination.
Whether the Claimant is entitled to the remedies sought
Awarded 6 months' salary in compensation and 1 month's salary in lieu of notice; service pay and overtime refused
Compensation of six months' salary was awarded taking into account the Claimant's length of service and the Respondent's conduct in the termination transaction. Notice pay was awarded. Service pay was refused because the Claimant was a contributing NSSF member, and the overtime claim failed for want of proof.
Legal principles established
#- An employer who asserts that an employee deserted duty must demonstrate efforts made towards reaching the employee, and at the least must notify the employee that termination on the ground of desertion is being considered
Court orders
#- 1.6 months' salary in compensation of Kshs. 103,200
- 2.1 month's salary in lieu of notice of Kshs. 17,200
- 3.Interest at court rates from the date of judgment until payment in full
- 4.Costs of the case to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (unlawful termination of employment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Matho Kaingu Kalama v Beaumont Resort Limited [2019] eL;R [2019] KEELRC 2307 (KLR)", Case Analysis (2019). Memorandum of Claim dated 27th March 2018, filed 9th April 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2307/eng@2019-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.