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ELRCPartially AllowedMemorandum of Claim dated 31st July 2017, filed 3rd August 2017· [2020] KEELRC 102 (KLR)

Titus Delax Opiyo Were v Creative Consolidated Systems Limited [2020] KEELRC 102 (KLR)

Employment and Labour Relations Court
17 December 2020
1,205 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 who claims an employee deserted duty must prove it made efforts to contact them, or the termination is unfair.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Steward from 18th March 2012 to 13th April 2017 at a monthly salary rising from Kshs. 8,000 to Kshs. 10,400, sued for unlawful termination and assorted dues. He alleged that on 7th April 2017 his supervisor informed employees deployed to Vivo Energy that the contract between the Respondent and Vivo had terminated, and they were not to report to work from 14th April 2017. He claimed notice pay, salary arrears, leave pay, underpayment, severance pay, twelve months' compensation and a Certificate of Service, citing breaches of Sections 9, 20, 28 and 31 of the Employment Act. The Respondent filed a Memorandum of Response on 4th November 2019 denying the claim, asserting it merely disbursed salaries, but did not attend trial. The court framed two issues: whether termination was unlawful, and whether remedies were due. It held that the desertion defence failed, as the Respondent adduced no evidence and, following Sarafina Wanyonyi v Lessos Veterinary Suppliers Ltd, an employer alleging desertion must show efforts to reach the employee. Termination was found to be without valid reason and in violation of due procedure. The court awarded eight months' salary in compensation, one month's notice pay and leave pay for three years, totalling Kshs. 115,440, with interest at court rates from the date of judgment. Claims for salary arrears, underpayment and severance were dismissed for lack of proof. The Claimant was granted a Certificate of Service and costs.

Key legal issues

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01

Whether the Claimant's employment was unlawfully terminated

Holding

Yes - termination was without valid reason and in violation of due procedure; the desertion defence failed

Reasoning

The Respondent alleged that the Claimant deserted duty, but desertion is a serious administrative offence inviting summary dismissal. Relying on Sarafina Wanyonyi v Lessos Veterinary Suppliers Ltd, the court held that an employer alleging desertion must show efforts to contact the employee. The Respondent adduced no evidence to support its allegation, so the defence was rejected and termination held to be without valid reason or due process.

p. 3
02

Whether the Claimant was entitled to leave pay

Holding

Yes - the claim succeeded because the Respondent produced no leave records

Reasoning

The burden was on the employer to show that annual leave was taken or paid in lieu. The Respondent did not provide leave records demonstrating that the Claimant had utilised his annual leave days. In the absence of such records, the claim for leave pay for three years succeeded and was allowed.

p. 3

Legal principles established

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  • An employer avowing that an employee has deserted duty must demonstrate efforts made to reach out to the deserting employee to establish their whereabouts and reason for absence
  • A bare allegation of desertion without evidence cannot sustain a defence to an unfair termination claim

Court orders

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  1. 1.8 months' salary in compensation for unlawful termination - Kshs. 83,200
  2. 2.1 month's salary in lieu of notice - Kshs. 10,400
  3. 3.Leave pay for 3 years - Kshs. 21,840
  4. 4.Total judgment of Kshs. 115,440 with interest at court rates from the date of judgment until payment in full
  5. 5.Claimant to be issued with a Certificate of Service
  6. 6.Claimant awarded costs of the case

Authorities

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Legislation

  • Employment ActSection 31
  • Employment ActSection 28
  • Employment ActSection 9
  • Employment ActSection 20
  • Employment ActSection 51

Cases cited (1)

  • Sarafina Wanyonyi v Lessos Veterinary Suppliers Ltd
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Employment and Labour Relations Court Act)

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, "Titus Delax Opiyo Were v Creative Consolidated Systems Limited [2020] KEELRC 102 (KLR)", Case Analysis (2020). Memorandum of Claim dated 31st July 2017, filed 3rd August 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/102/eng@2020-12-17

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