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ELRCDismissedNot stated in judgment· [2019] KEELRC 2374 (KLR)

Alexander Maina Macharia v Peter Wanjau Maina t/a Ripple Cafe [2019] KEELRC 2374 (KLR)

Employment and Labour Relations Court
12 February 2019
NMNzioki wa Makau
1,792 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employee who stopped reporting to work after a text message was not dismissed, so he lost his case entirely.

What this practically means

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Executive summary

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The Claimant, a restaurant manager earning Kshs. 17,000/- per month, sued his former employer alleging unlawful dismissal effected by an SMS on 21st May 2017 reading 'Naona usiende. Hiyo sio saa ya kazi. Tuongee nikitoka Church.' He sought a declaration of unfair termination, damages, unpaid leave for two years, salary arrears for 20 days worked in May 2017, one month's notice pay, overtime and costs. The Respondent denied dismissing him, asserting he deserted work after being told not to open the restaurant late, and counterclaimed Kshs. 91,380/- for salary advances, unpaid staff salaries entrusted to the Claimant and unaccounted tea supply payments to AA driving school; no defence to the counterclaim was filed. The Claimant and the Respondent's witness, Peter Wanjau Maina, testified. The Respondent relied on English authorities on who terminates the contract and repudiatory breach. The court construed the SMS as a bar to reporting to work rather than an invitation to a performance discussion, but found the Claimant failed to report to work thereafter for months, which was inconsistent with an employee's expected conduct, while the Respondent did not follow up either. Holding that the loss-of-money issue was a year old and not the cause of the separation, the court concluded there was no termination and dismissed the suit, making no order as to costs. The counterclaim was not separately adjudicated.

Key legal issues

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01

Whether the SMS constituted a dismissal

Holding

The SMS barred the Claimant from reporting to work and amounted to dismissal in form, but the court ultimately found there was no termination because the Claimant abandoned the employment by failing to report to work

Reasoning

The court construed the SMS ('Naonda usiende...') as a bar to reporting to work rather than a performance discussion. However, the Claimant did not follow up for two months, and the Respondent likewise did not pursue him. The court held the Claimant's failure to report to work meant there was no termination by the Respondent.

p. 3
02

Whether the alleged loss of money justified separation

Holding

The loss of money occurred a year earlier and was not the main reason for the falling out

Reasoning

The court noted an unresolved issue relating to loss of money but found it predated the separation by about a year and was not the operative cause of the dispute; the immediate trigger was the Claimant's late reporting prompting the SMS.

p. 3
03

Counterclaim of Kshs. 91,380/-

Holding

No defence to the counterclaim was filed but the court made no award, dismissing the entire suit and making no order as to costs

Reasoning

The judgment does not separately adjudicate the counterclaim; the disposition simply dismisses the suit with no order as to costs, leaving the counterclaim unaddressed in the final orders.

p. 3

Legal principles established

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  • Whether a communication amounts to dismissal is a question of construction of the whole message in its context

Court orders

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  1. 1.The Claimant's suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment ActSection 43

Cases cited (3)

  • Price v Guest, Keen & Nettle-Folds Ltd
    [1918] Scottish Law Reporter Vol. LVI. 361
  • SAS Service Partners v Whalley
    (1983) ICR 511
  • Hong Kong Fir Shipping Co. Ltd v Kawasaki Kisen Kaisha Ltd
    [1962] 1 ALL ER 474
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (as invoked by parties; not expressly cited in judgment)

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, "Alexander Maina Macharia v Peter Wanjau Maina t/a Ripple Cafe [2019] KEELRC 2374 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2374/eng@2019-02-12

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