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ELRCPartially AllowedCause No 1260 of 2016· [2020] KEELRC 855 (KLR)

Felix Muchemi Thirima v Kenya Pipeline Company Limited [2020] KEELRC 855 (KLR)

Employment and Labour Relations Court
19 June 2020
2,839 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court upheld a summary dismissal for repeated absenteeism, awarding the employee only unpaid dues and no compensation.

What this practically means

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Executive summary

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The Claimant, employed on 29 May 2006 as a clerical officer earning Kshs.77,000.00, was summarily dismissed on 5 May 2016 for desertion of duty from 26 April 2016. He claimed he was on leave, then unwell and hospitalised, and sought reinstatement, compensation for unfair termination, time lost, unpaid May 2016 salary, 12 months' salary, unpaid leave days and costs. The Respondent maintained he was a chronic absentee issued with a show cause letter on 29 April 2016 which he ignored, and that it learned of his hospitalisation only in May 2016 and settled the bill out of benevolence under its CBA. The Respondent closed its case without calling a witness, unable to secure attendance. The court framed two issues: whether the termination was lawful and for valid cause, and whether the Claimant was entitled to the reliefs sought. On reason, the court found the leave records showed no leave days taken in 2016, the Claimant admitted absence without leave, his alleged bipolar and asthmatic conditions were unsupported by medical evidence, and his record showed habitual absenteeism with prior disciplinary measures from 2011 to 2015, so the Respondent had valid reason under Sections 44(3) and (4)(a) of the Employment Act. On procedure, the court found the Claimant received the show cause letter but did not respond or appeal, and could not fault a procedure he did not subject himself to. Only terminal dues were awarded: the unpaid salary balance, unpaid leave days and pay in lieu of notice, payable upon the Claimant undergoing the Respondent's clearance procedure. Reinstatement and compensation were declined, the dismissal being lawful and over three years having lapsed. There were no orders as to costs.

Key legal issues

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01

Whether the summary dismissal was for a valid and justifiable reason

Holding

The Respondent had valid reason: the Claimant deserted duty in March and April 2016, took no leave days in 2016, and had a documented history of habitual absenteeism from 2011 to 2015

Reasoning

The termination letter cited deliberate desertion of duty without permission. The Respondent's leave system printout showed no leave days taken in 2016, which the Claimant did not controvert, and he admitted being away without leave. His alleged bipolar disorder and asthma were unsupported by any medical report and remained mere allegations. His record of absenteeism (surcharge, warnings, counselling, disciplinary action) further supported the dismissal.

p. 3
02

Whether due procedure under Section 41 was followed

Holding

The dismissal was lawful; the Claimant received the show cause letter but failed to respond or use the appeals process, so cannot fault the procedure

Reasoning

The Claimant denied receiving the show cause letter but did not deny receiving other correspondence which, like the show cause letter, bore no acknowledgement of receipt. The dismissal letter referenced the show cause letter and he raised no queries and did not appeal. The court inferred receipt and deliberate non-response, holding he failed to subject himself to the disciplinary procedure.

p. 4
03

Entitlement to reliefs

Holding

Only terminal dues (unpaid salary balance, pay in lieu of notice and unpaid leave days) awarded; reinstatement and compensation declined

Reasoning

The Respondent admitted dues were unpaid and willing to pay subject to clearance. The Claimant did not pray for notice pay but the termination letter included it and the Respondent admitted readiness to pay. Reinstatement and compensation for unfair termination were refused because the Claimant failed to establish unfair dismissal and more than 3 years had lapsed, with reinstatement no longer pursued.

p. 4

Legal principles established

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  • The onus of proof in employment matters rests upon the employer who must prove the reasons for termination, their validity, fairness and justifiability
  • Absence from work without permission or lawful cause amounts to gross misconduct warranting summary dismissal under Section 44(4)(a) of the Employment Act
  • An employee who does not subject himself to the employer's disciplinary procedure cannot fault the employer for failing to follow that procedure

Court orders

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  1. 1.The claimant submits to the clearance procedure to facilitate the payment of his terminal dues as set out in the letter of termination
  2. 2.The rest of the claim is dismissed
  3. 3.No orders for costs

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 44(3), 44(4)(a)
  • Employment ActSection 41
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (3)

  • Kenya Petroleum Oil Workers Union v Kenya Petroleum Refineries Limited
    [2013] eKLR
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    Cause 74 of 2013
  • Kenya Revenue Authority v Menginya Salim Murgani
    [2010] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (Employment Act; Article 159(2)(d) and Article 48 Constitution invoked for electronic delivery)

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, "Felix Muchemi Thirima v Kenya Pipeline Company Limited [2020] KEELRC 855 (KLR)", Case Analysis (2020). Cause No 1260 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/855/eng@2020-06-19

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