James Eoi Lopariiku v Marula Estates Limited [2020] KEELRC 1423 (KLR)
The bottom line
#A Kenyan farm worker who refused a warning letter and stopped showing up lost his unfair dismissal case because courts treat walking away as ending your own job.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant's employment was unfairly terminated or whether he absconded duty after refusing a warning letter
- 2.Whether reinstatement is available as a remedy
- 3.Whether the claimant is entitled to notice pay
- 4.Whether the claimant is entitled to payment for untaken annual leave for 15 years
Key legal issues
#Whether termination was unfair
Not unfair; the claimant frustrated his own employment by refusing to accept a warning and abandoning duty
The court found the claimant was issued a warning over a lost cow but refused to accept or sign it, walking away and never returning to work. Section 44(4) allows summary dismissal for refusal of lawful instructions; an employee who disputes a warning should appeal it rather than abandon employment. The claimant's own conduct, not the employer's, ended the relationship.
Reinstatement
Not available
Beyond the merits, section 12 of the Employment and Labour Relations Court Act, 2011 read with section 49(4) of the Employment Act, 2007 limits the period within which reinstatement can be ordered; the lapse from September 2013 to judgment exceeded that period.
Notice pay
Not due
Where summary dismissal is warranted and the employee refused a warning and walked away, notice pay does not arise. The court treated the separation as self-inflicted rather than a termination obliging notice.
Annual leave for 15 years
Not payable
Employment on the evidence subsisted only from about 2007 to 2013 (under 6 years), the last payment statement showed pro-rated leave payment which was not challenged, and any continuing injury claim was caught by the 12-month limitation under section 90 of the Employment Act.
Legal principles established
#- An employee notified of gross misconduct and sanctioned with a warning must accept the warning and challenge it if untrue, not walk away from employment
- Section 44(4) of the Employment Act permits summary dismissal of an employee who refuses lawful instructions
- Untaken leave is a continuing injury subject to the 12-month limitation in section 90 of the Employment Act
Court orders
#- 1.The claims made are found without merit and are dismissed
- 2.Each party shall bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011 (section 12) read with the Employment Act, 2007
Relief refused
#Reinstatement and/or terminal dues with compensation of Ksh. 67,284
The claimant frustrated his own employment by refusing a lawful warning; reinstatement is not available and the time lapse exceeds the statutory period
3 months' notice pay of Ksh. 16,821
Notice pay is not due where summary dismissal was warranted and the claimant walked away after refusing a warning
Leave days not taken for 15 years at Ksh. 168,210
There was prima facie evidence of leave taken or paid in lieu, and any continuing injury claim was barred by the 12-month limitation under section 90 of the Employment Act
Costs
Each party shall bear own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the claims made are found without merit and are hereby dismissed. Each party shall bear own costs.
he basically frustrated his own employment. This cannot be visited upon the respondent as the employer.
Such an employee notified of his alleged gross misconduct and sanctioned with a warning, the option is to accept the warning and where not true to challenge the same with an appeal.
if there was work continuously without taking leave or payment in lieu thereof, that would amount to continuing injury and in terms of section 90 of the Employment Act, 2007, the Claimant should have moved Court within 12 months.
Issues in the judgment
#Internal contradiction on the date the employment ended: the opening narrative states termination in June 2013 while the defence and evidence place the warning and alleged abscondment on 19th September 2013
Internal contradiction on dates of employment: the claim alleges employment from 1998 while the judgment records testimony that statutory dues were remitted from 2007 and the claimant himself was unclear on years of service
Typographical/statutory citation errors in the judgment text (e.g. '20077' and 'termite' for 'terminated'), and apparent misstatement of monthly earnings (Ksh.5,607 versus testimony of Ksh.9,000)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Eoi Lopariiku v Marula Estates Limited [2020] KEELRC 1423 (KLR)", Case Analysis (2020). Cause No. 161 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1423/eng@2020-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.