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ELRCPartially AllowedMemorandum of Claim dated 23rd August 2017· [2019] KEELRC 2487 (KLR)

Joseph Mududu Kenga v Nas Airport Services Ltd Mombasa & another [2019] KEELRC 2487 (KLR)

Employment and Labour Relations Court
31 January 2019
1,343 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, employed from 17th August 2015, sued the Respondents for unlawful termination of employment, claiming he was asked to surrender his port identity pass on 30th July 2017 without any formal suspension or termination letter, and seeking 12 months' salary compensation, notice pay, salary arrears, leave pay, service charge, overtime, house allowance, unremitted NHIF/NSSF dues and other heads. The Respondents admitted the employment relationship but asserted the Claimant deserted duty after being called to account for irregularly voiding a bill and failing to reconcile daily accounts, and denied liability under any CBA. The court framed two issues: whether the Claimant deserted duty or was unlawfully terminated, and his entitlement to remedies. Holding that an employer alleging desertion must prove demonstrable efforts to reach the employee, including at least a show-cause letter, the court found the desertion allegation unproved and that the misconduct allegations were never tested at a disciplinary meeting. It held the termination was without justifiable cause and in violation of due procedure. The court awarded six months' salary in compensation (Kshs. 150,000) and one month's salary in lieu of notice (Kshs. 25,000), jointly and severally against both Respondents, with interest at court rates, a certificate of service and costs. Claims for house allowance (consolidated in salary), leave pay (leave forms showed utilization), salary arrears, overtime, service charge and other ancillary heads were dismissed as unproved, and NHIF/NSSF dues were held payable to the statutory bodies, not the Claimant.

Key legal issues

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01

Whether the Claimant deserted duty or was unlawfully terminated

Holding

The allegation of desertion was unproved; the Respondents terminated the Claimant's employment without justifiable cause and in violation of due procedure.

Reasoning

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.

p. 2
02

Whether the Claimant is entitled to the remedies sought

Holding

Compensation of six months' salary and one month's salary in lieu of notice awarded; most ancillary heads dismissed as unproved or without basis.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 2.1 month's salary in lieu of notice Kshs. 25,000 (total Kshs. 175,000)
  3. 3.Interest at court rates from the date of judgment until payment in full
  4. 4.Claimant entitled to a certificate of service
  5. 5.Costs of the case to the Claimant

Authorities

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Legislation

  • Employment Act, 2007Section 31(1) and (2)

Cases cited (1)

  • James Ashiembi Namayi v Menengai Oil Refineries Ltd
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)

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, "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.