Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 1746 of 2013· [2019] KEELRC 2623 (KLR)

Kiura v Lichi Security Systems Limited (Cause 1746 of 2013) [2019] KEELRC 2623 (KLR)

Employment and Labour Relations Court
31 January 2019
OMOnesmus N. Makau
1,820 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled an employee who walked off the job deserted it, so only her admitted dues like gratuity and leave were payable.

What this practically means

#

Executive summary

#
The claimant sued the respondent for wrongful/unlawful termination, alleging she was pushed out while on annual leave in 2011 and sought notice pay, unpaid leave, gratuity, SACCO shares refund, house allowance arrears, maximum compensation, reinstatement, salary arrears and a certificate of service. The respondent denied terminating her, contending she deserted employment after an extended leave. The claimant testified and the respondent called its Acting Operations Manager. The court framed two issues: whether the claimant was unfairly terminated or deserted, and whether reliefs should be granted. Applying section 47(5) of the Employment Act, the court held the burden lay on the claimant, and found that her demand letter of 15.8.2013 offering one month's salary in lieu of notice amounted to an admission that she herself terminated the contract without notice. The unfair termination claim therefore failed. On reliefs, the court granted admitted gratuity of Kshs.80,500, computed accrued leave of 6.5 days at Kshs.2,992, allowed the SACCO shares refund of Kshs.60,300 (payable by the SACCO), and ordered a certificate of service as a statutory right under section 51. Claims for notice pay, compensation, house allowance arrears and salary from March 2011 were dismissed. Judgment of Kshs.83,492 was entered with costs and interest at court rate from filing. Judgment delivered by Onesmus N. Makau, Judge, at Nairobi on 31 January 2019.

Key legal issues

#
01

Whether the claimant was unfairly terminated or deserted employment

Holding

The claimant deserted her employment; unfair termination was not proved

Reasoning

Applying section 47(5) of the Employment Act, the claimant bore the burden of proving unfair termination. The court found her demand letter of 15.8.2013, offering one month's salary in lieu of notice, an admission she terminated the contract without notice. Her account of being turned away on resuming duty did not displace this.

p. 4
02

Whether the reliefs sought should be granted

Holding

Only gratuity, accrued leave and SACCO shares refund granted; notice, compensation, house allowance and post-2011 salary refused

Reasoning

The court assessed each relief separately. Gratuity was admitted by the respondent's letter dated 1.8.2013. Leave was computed from respondent's records as 6.5 days. House allowance failed because salary was gross pay. SACCO shares refund was allowed but payable by the SACCO. A certificate of service was ordered as a statutory right.

p. 4

Legal principles established

#
  • The burden of proving unfair termination lies with the employee who alleges it, under section 47(5) of the Employment Act
  • A demand for terminal dues less one month salary in lieu of notice may amount to an admission that the employee terminated the contract without notice, constituting desertion
  • Every employee is entitled to a certificate of service under section 51 of the Employment Act

Court orders

#
  1. 1.Dismissal of the claim for salary in lieu of notice and compensation for unfair/wrongful termination
  2. 2.Award of gratuity of Kshs.80,500
  3. 3.Award of accrued leave of 6.5 days (Kshs.2,992)
  4. 4.Allowance of refund of SACCO shares of Kshs.60,300, to be paid by the SACCO
  5. 5.Dismissal of the claim for house allowance arrears and for salary from 4.3.2011
  6. 6.Order for issuance of a Certificate of Service
  7. 7.Judgment of Kshs.83,492 with costs and interest at court rate from the date of filing suit

Authorities

#

Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 51
Jurisdiction invoked
Article 162(2) of the Constitution (Employment and Labour Relations Court) - not expressly cited in the extract

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kiura v Lichi Security Systems Limited (Cause 1746 of 2013) [2019] KEELRC 2623 (KLR)", Case Analysis (2019). Cause No 1746 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2623/eng@2019-01-31

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