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ELRCPartially AllowedEmployment claim by Memorandum of Claim dated 30th May 2018 (filed 31st May 2018)· [2020] KEELRC 666 (KLR)

Lukas Samarwa Kondo v Njuca Consolidated Company Limited [2020] KEELRC 666 (KLR)

Employment and Labour Relations Court
9 April 2020
1,495 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who claims an employee deserted duty must prove it actually tried to contact them, or the termination is unfair and compensation follows.

What this practically means

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Executive summary

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This was an employment claim by Lukas Samarwa Kondo against Njuca Consolidated Company Limited, arising from the termination of his employment as a security guard. The Claimant, employed from June 2015 at a monthly salary of Kshs. 12,600, claimed he was bitten by a snake while on duty on 26th January 2016, and that after he pursued compensation (including filing Mariakani PMCC No. 171 of 2017) the Respondent threatened him and ultimately terminated his employment on 23rd December 2016 without notice or due process. He sought notice pay, twelve months' compensation, overtime, leave pay, gratuity, underpayment and house allowance, a certificate of service and costs. The Respondent admitted the employment and the snake bite (noting the Claimant was compensated in the magistrates' court cause) but asserted that the Claimant deserted duty after being instructed to report to its Chaani office for redeployment, and that he thereby forfeited his benefits. The court framed two issues: whether the Claimant deserted duty or was unlawfully terminated, and his entitlement to remedies. The Respondent's witness was not present when the three letters (summons, show cause, summary dismissal) were allegedly served, and neither the author (Director A.M Njoroge) nor the alleged server testified. The Claimant's denial of receipt was unshaken, and applying Richard Kiplimo Koech v Yako Supermarket Ltd, the court held the desertion allegation could not stand, finding unlawful and unfair termination. The court awarded six months' salary as compensation, one month's notice pay and leave pay, totaling Kshs. 101,430 with interest, plus a certificate of service and costs. Gratuity, overtime and underpayment claims failed for lack of proof. Judgment was delivered electronically pursuant to COVID-19 directions.

Key legal issues

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01

Whether the Claimant deserted duty or was unlawfully terminated

Holding

The claim of desertion failed; the Claimant proved unlawful and unfair termination of employment.

Reasoning

The Respondent alleged the Claimant was summoned to its Chaani office for redeployment and, having failed to report, was issued a show cause letter and summary dismissal letter. The Claimant denied receipt of all three letters. The author of the letters (Director A.M Njoroge) and the alleged server were not called as witnesses, and the Respondent's witness was not present at the alleged service. The Claimant's denial therefore remained unshaken, and following Richard Kiplimo Koech v Yako Supermarket Ltd the employer bore the burden of proving it reached out to the employee. No proof of contact after 23rd December 2016 meant the desertion allegation could not stand, warranting compensation for unfair termination.

p. 3
02

Remedies payable for the unfair termination

Holding

Six months' salary in compensation, one month's notice pay and leave pay awarded; gratuity, overtime and underpayment claims dismissed.

Reasoning

In fixing compensation at six months' salary the court took into account the Claimant's length of service and the Respondent's failure to follow the law. Notice pay was awarded as the termination was without notice. Leave pay succeeded as the Respondent produced no leave records to the contrary. Gratuity had no evidentiary basis, and the overtime and underpayment claims were not proved.

p. 4

Legal principles established

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  • An employer alleging that an employee deserted duty must make reasonable effort to reach out to and seek an explanation from the employee; absent proof of such contact, a desertion claim fails and termination is unlawful.

Court orders

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  1. 1.Judgment entered in favour of the Claimant in the sum of Kshs. 101,430 (6 months' salary in compensation Kshs. 75,600; 1 month's salary in lieu of notice Kshs. 12,600; leave pay for 1 year Kshs. 8,820; prorata leave for 6 months Kshs. 4,410)
  2. 2.The said amount to attract interest at court rates from the date of judgment until payment in full
  3. 3.The Claimant is entitled to a certificate of service
  4. 4.The Claimant is awarded costs of the case

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 18
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 40

Cases cited (1)

  • Richard Kiplimo Koech v Yako Supermarket Ltd
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Article 162(2) jurisdiction; claim filed as Memorandum of Claim)

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, "Lukas Samarwa Kondo v Njuca Consolidated Company Limited [2020] KEELRC 666 (KLR)", Case Analysis (2020). Employment claim by Memorandum of Claim dated 30th May 2018 (filed 31st May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/666/eng@2020-04-09

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