Lukas Samarwa Kondo v Njuca Consolidated Company Limited [2020] KEELRC 666 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant deserted duty or was unlawfully terminated
The claim of desertion failed; the Claimant proved unlawful and unfair termination of employment.
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.
Remedies payable for the unfair termination
Six months' salary in compensation, one month's notice pay and leave pay awarded; gratuity, overtime and underpayment claims dismissed.
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.
Legal principles established
#- 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
#- 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.The said amount to attract interest at court rates from the date of judgment until payment in full
- 3.The Claimant is entitled to a certificate of service
- 4.The Claimant is awarded costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Article 162(2) jurisdiction; claim filed as Memorandum of Claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.