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ELRCPartially AllowedMemorandum of Claim dated 23rd October 2015· [2019] KEELRC 2471 (KLR)

Said Kamanza Bati v Shiva Carriers Ltd [2019] KEELRC 2471 (KLR)

Employment and Labour Relations Court
17 January 2019
LNLINNET NDOLO
638 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa employment court ruled that an employer must prove an employee deserted duty, awarding the worker Kshs. 88,371 for unlawful termination.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as an electrician on contractual basis, sued for unlawful termination of employment alleging that on 15th September 2015 he was notified by the Respondent's Workshop Manager that his employment had been terminated, after failing to complete a repair assignment for lack of a spare part. The Respondent, in its Response, denied any termination, contending that the Claimant deserted duty and disappeared mysteriously from work, causing it financial loss. The Respondent filed a Response but called no witness at trial; the Claimant testified on his own behalf and both parties filed written submissions. The court framed two issues: whether the Claimant deserted duty or was unlawfully terminated, and whether he was entitled to the remedies sought. Relying on Javan Kisoi Mulwa v S.A.A Interstate Traders (K) Ltd, the court held that desertion is a grave administrative offence which must be proved, requiring evidence of efforts to reach the employee with notice that termination on account of desertion is contemplated. The Respondent adduced no evidence to prove desertion or contradict the Claimant's account, and the court found no reason to disbelieve the Claimant. It held the termination was without justifiable cause under Section 43 of the Employment Act, 2007 and in violation of due procedure under Section 41. The court awarded three months' salary as compensation, one month's salary in lieu of notice, and salary for 15 days worked in September 2015, totalling Kshs. 88,371, with interest at court rates from judgment until payment in full, plus a certificate of service and costs of the case.

Key legal issues

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01

Whether the Claimant deserted duty or was unlawfully terminated

Holding

The Respondent failed to prove desertion; the Claimant's employment was terminated without justifiable cause and in violation of due procedure

Reasoning

Desertion is a grave administrative offence which must be proved. The court held that proof of desertion requires evidence of efforts to reach the employee with notice that termination on account of desertion is being considered. The Respondent called no witness and adduced no evidence to prove desertion or contradict the Claimant's testimony that his employment was terminated by the Workshop Manager. The court found no reason to disbelieve the Claimant and held the termination unjustified under Section 43 and procedurally flawed under Section 41 of the Employment Act.

p. 2
02

Whether the Claimant is entitled to the remedies sought

Holding

The Claimant was awarded three months' salary as compensation, one month's salary in lieu of notice, salary for 15 days worked in September 2015, a certificate of service and costs

Reasoning

Having found unlawful termination, the court exercised discretion to award the equivalent of three months' salary as compensation, factoring in the Claimant's length of service and the Respondent's conduct in the termination transaction. Notice pay and salary for days worked were also awarded as contractual/statutory dues, with interest at court rates from the date of judgment until payment in full.

p. 2

Legal principles established

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  • For an employer to prove desertion, there must be evidence of efforts made to reach out to the employee to put them on notice that termination on account of desertion is being considered
  • An employer who does not call any evidence to contradict the claimant's account risks the court accepting the claimant's testimony

Court orders

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  1. 1.3 months' salary in compensation of Kshs. 58,914
  2. 2.1 month's salary in lieu of notice of Kshs. 19,638
  3. 3.Salary for 15 days in September 2015 of Kshs. 9,819
  4. 4.Total award of Kshs. 88,371 with interest at court rates from the date of judgment until payment in full
  5. 5.Claimant entitled to a certificate of service
  6. 6.Costs of the case to the Claimant

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 41

Cases cited (1)

  • Javan Kisoi Mulwa v S.A.A Interstate Traders (K) Ltd
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim under Sections 41 and 43)

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, "Said Kamanza Bati v Shiva Carriers Ltd [2019] KEELRC 2471 (KLR)", Case Analysis (2019). Memorandum of Claim dated 23rd October 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2471/eng@2019-01-17

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