Joseph Mududu Kenga v Nas Airport Services Ltd Mombasa & another [2019] KEELRC 2487 (KLR)
The bottom line
#A Kenyan employer claiming an employee deserted duty must prove they tried to reach the worker and give them a chance to respond, or the dismissal is unlawful.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant deserted duty or was unlawfully terminated
The allegation of desertion was unproved; the Respondents terminated the Claimant's employment without justifiable cause and in violation of due procedure.
Desertion is a serious offence but the employer must prove it by showing demonstrable efforts to reach the employee, at the very least a show-cause letter. No such evidence was adduced. The allegations of irregular bill voiding and failure to reconcile accounts could only be proved at a disciplinary meeting, and there was no evidence the Claimant was invited to any. Termination was therefore unjustified and procedurally flawed.
Whether the Claimant is entitled to the remedies sought
Compensation of six months' salary and one month's salary in lieu of notice awarded; most ancillary heads dismissed as unproved or without basis.
The court considered length of service and the Respondents' conduct in awarding six months' salary. House allowance was excluded because the contract consolidated it into salary; leave pay failed because leave forms showed leave was utilized; other claims (arrears, service charge, overtime, etc.) were not proved. NHIF/NSSF dues lie with the statutory bodies, and a certificate of service plus costs was granted.
Legal principles established
#- An employer alleging desertion must prove it by demonstrating efforts to reach the employee and put them on notice that termination is being considered
Court orders
#- 1.Judgment entered in favour of the Claimant and against the 1st and 2nd Respondents jointly and severally: 6 months' salary in compensation Kshs. 150,000
- 2.1 month's salary in lieu of notice Kshs. 25,000 (total Kshs. 175,000)
- 3.Interest at court rates from the date of judgment until payment in full
- 4.Claimant entitled to a certificate of service
- 5.Costs of the case to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mududu Kenga v Nas Airport Services Ltd Mombasa & another [2019] KEELRC 2487 (KLR)", Case Analysis (2019). Memorandum of Claim dated 23rd August 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2487/eng@2019-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.