Benjamin Mutuku Kimuyu v Nguvu Construction & Mining Limited [2020] KEELRC 216 (KLR)
The bottom line
#A Kenyan court ruled an employee on suspension did not abscond—he was unfairly dismissed—awarding him Kshs. 696,000 because the employer never followed up or followed due process.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was dismissed or absconded duty
The Claimant did not abscond duty; he was dismissed.
The Claimant was placed on 30 days' suspension on 16/2/2016. When he wrote inquiring and demanded terminal dues, the Respondent neither replied nor advised him to await the lapse of the suspension. No notice to show cause was issued for absconding. The court held the employer should have followed up on the suspension and advised the Claimant, so absconding did not arise and the Claimant was dismissed.
Whether the dismissal was fair and justified
The dismissal was unfair and unjustified.
Under Section 41 of the Employment Act, an employer must explain reasons and hear representations before termination; under Section 45(2), the employer must prove valid reason, fair reason and fair procedure. No disciplinary process was instituted against the Claimant either for absconding or for the allegations in the suspension letter, and no valid reasons were proved.
Whether the Claimant is entitled to the remedies sought
Partially: notice pay, 3 years' unpaid leave, 3 years' house allowance, 8 months' salary as compensation, and a certificate of service were awarded; other claims failed or were time barred.
Having found unfair termination, the court exercised discretion under Section 49 of the Employment Act, awarding the equivalent of 8 months' salary as compensation, one month's notice pay, and leave and house allowance limited to three years as the remainder was time barred, plus a certificate of service.
Legal principles established
#- An employer who suspends an employee pending investigations must follow up on the suspension, inform the employee of the results and advise on the next course of action; failure to do so means the employee cannot be treated as having absconded duty.
- Termination without due process under Section 41 and without proof of valid reasons under Section 45 of the Employment Act is unfair and unjustified.
Court orders
#- 1.1 month's salary in lieu of notice = Kshs. 40,000/-
- 2.Unpaid leave for 3 years preceding the termination, the rest of the years being time barred = Kshs. 12,000/-
- 3.Unpaid house allowance for 3 years (the rest also being time barred) = Kshs. 216,000/-
- 4.8 months' salary as compensation for the unfair and unlawful termination = Kshs. 320,000/-
- 5.Total award of Kshs. 696,000/- less statutory deductions
- 6.Issuance of a certificate of service to the Claimant
- 7.Respondent to pay costs of the suit plus interest at Court rates from the date of judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution and the Employment Act, 2007 (fair labour practices under Article 41 pleaded)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Mutuku Kimuyu v Nguvu Construction & Mining Limited [2020] KEELRC 216 (KLR)", Case Analysis (2020). Not stated in the extract (Memorandum of Claim dated 8th April, 2016, filed 12th April, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/216/eng@2020-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.