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ELRCPartially AllowedNot stated in the judgment· [2020] KEELRC 1407 (KLR)

Naomy Osiemo v Geoffrey Nyang’au t/a Mavuno Mini Supermarket [2020] KEELRC 1407 (KLR)

Employment and Labour Relations Court
13 March 2020
OMOnesmus N. Makau
1,773 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who fails to show up in court and prove an employee deserted work lost an unfair termination claim worth Kshs 46,903 plus costs.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a shop attendant from January 2015 at a monthly salary of Kshs. 9,000, claimed she was dismissed by SMS on 26 July 2016 and sought notice pay, off days, overtime, unlawful monthly deductions, service charge, accrued leave and compensation for unfair dismissal. The respondent admitted the employment but alleged the claimant deserted duty after being warned over theft, relying on sections 43(2) and 44(4) of the Employment Act and case law on summary dismissal for theft and proof of overtime. The court framed three issues: desertion or dismissal, fairness of any dismissal, and entitlement to relief. The respondent neither testified nor filed witness statements or documents. The court held that the alleged desertion was not proved on a balance of probability while the claimant's unrebuted evidence of dismissal by SMS was proved. Applying sections 45(2) and 41 of the Employment Act, the court found the dismissal unfair because the respondent proved neither a valid and fair reason nor a fair procedure, including a hearing before another employee of the claimant's choice. On relief, the court awarded one month's notice pay (Kshs. 9,000), three months' salary as compensation under section 49 (Kshs. 27,000), considering the claimant's one and a half years of service and the absence of proved misconduct, and prorated leave computed at 1.75 days per month for 18 months (Kshs. 10,903.85), a total of Kshs. 46,903.85. Claims for off days, overtime, service charge and monthly deductions were declined for want of documentary or eyewitness proof. Judgment was entered for the claimant with costs and interest at court rates from the date of the judgment, delivered at Nairobi on 13 March 2020 by Onesmus N. Makau, Judge.

Key legal issues

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01

Whether the claimant deserted work or was dismissed

Holding

Desertion was not proved; dismissal by SMS on 26.7.2016 was proved, as the respondent adduced no evidence to rebut the claimant's testimony

Reasoning

The respondent alleged the claimant absconded duty, but he never testified, filed witness statements or documents. Applying the rule that he who alleges must prove, the court found the allegation of desertion unproven on a balance of probability, while the claimant's unrebuted evidence that she was dismissed by SMS stood proved.

p. 3
02

Whether the dismissal was unfair

Holding

The dismissal was unfair within section 45 of the Employment Act

Reasoning

Under section 45(2), termination is unfair if the employer fails to prove a valid and fair reason and a fair procedure. The respondent did not testify or file witness statements, so he discharged neither burden. He also failed to prove compliance with section 41, which requires a hearing in the presence of another employee of the employee's choice.

p. 3
03

Entitlement to reliefs

Holding

Notice pay, three months' compensation under section 49 and prorated leave awarded; claims for off days, overtime, service charge and deductions declined for want of proof

Reasoning

In awarding compensation the court considered the claimant's one and a half years of service and that no misconduct was proved against her. Claims requiring documentary or eyewitness proof - off days, overtime, service charge and deductions - failed because the claimant relied only on verbal allegations, while leave was computed at 1.75 days per month for 18 months.

p. 3

Legal principles established

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  • An employer alleging desertion bears the burden of proving it; where the employer tenders no evidence, unchallenged evidence of dismissal stands proved
  • Termination is unfair where the employer fails to prove a valid and fair reason and a fair procedure, including a hearing under section 41 of the Employment Act
  • Overtime must be proved by documentary evidence and witnesses, not mere verbal allegation
  • Leave accrues at 21 days per year or 1.75 days per month on a prorated basis under section 28 of the Employment Act

Court orders

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  1. 1.Judgment entered for the claimant in the sum of Kshs. 46,903.85, comprising Kshs. 9,000.00 notice pay, Kshs. 27,000.00 compensation for unfair termination and Kshs. 10,903.85 leave pay
  2. 2.The award is less statutory deduction but in addition to costs and interest at court rates from the date of the judgment

Authorities

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Legislation

  • Employment Actsection 43(2)
  • Employment Actsection 44(4)
  • Employment Actsection 19(1)(b)
  • Employment Actsection 45(2)
  • Employment Actsection 41
  • Employment Actsection 49
  • Employment Actsection 28

Cases cited (2)

  • Naqvi Syed Omar v Paramount Bank Limited & Another
    [2015] eKLR
  • Jacob Juma Makokha v Radar Security (K) Ltd.
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment 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, "Naomy Osiemo v Geoffrey Nyang’au t/a Mavuno Mini Supermarket [2020] KEELRC 1407 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1407/eng@2020-03-13

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