Felix Muchemi Thirima v Kenya Pipeline Company Limited [2020] KEELRC 855 (KLR)
The bottom line
#A Kenyan court upheld a summary dismissal for repeated absenteeism, awarding the employee only unpaid dues and no compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was for a valid and justifiable reason
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
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.
Whether due procedure under Section 41 was followed
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
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.
Entitlement to reliefs
Only terminal dues (unpaid salary balance, pay in lieu of notice and unpaid leave days) awarded; reinstatement and compensation declined
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.
Legal principles established
#- 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
#- 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.The rest of the claim is dismissed
- 3.No orders for costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction (Employment Act; Article 159(2)(d) and Article 48 Constitution invoked for electronic delivery)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.