Titus Delax Opiyo Were v Creative Consolidated Systems Limited [2020] KEELRC 102 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant's employment was unlawfully terminated
Yes - termination was without valid reason and in violation of due procedure; the desertion defence failed
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.
Whether the Claimant was entitled to leave pay
Yes - the claim succeeded because the Respondent produced no leave records
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.
Legal principles established
#- 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
#- 1.8 months' salary in compensation for unlawful termination - Kshs. 83,200
- 2.1 month's salary in lieu of notice - Kshs. 10,400
- 3.Leave pay for 3 years - Kshs. 21,840
- 4.Total judgment of Kshs. 115,440 with interest at court rates from the date of judgment until payment in full
- 5.Claimant to be issued with a Certificate of Service
- 6.Claimant awarded costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.