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ELRCPartially AllowedCause No 98 of 2010· [2020] KEELRC 1721 (KLR)

John Wanjohi Wakahora v Linksoft Communications Systems Limited [2020] KEELRC 1721 (KLR)

Employment and Labour Relations Court
31 January 2020
3,050 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that an employee who leaves work citing safety fears has not deserted duty, and awarded him compensation for unfair termination.

What this practically means

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Executive summary

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The Claimant, employed from 1st June 2006 as Chief Technical Officer and later as Managing Director, Nigeria from 1st November 2007, claimed his employment was wrongfully and unfairly terminated on 1st February 2009 on allegations of absconding duty at the Abuja office. He sought a declaration of wrongful dismissal, a certificate of service, five months' unpaid salary of Kshs. 2,109,375, three months' salary in lieu of notice, costs and interest. The Respondent admitted the engagement but maintained the Claimant absconded and was summarily dismissed under Section 44 of the Employment Act following due process. The court framed two issues: whether the termination was unlawful or the Claimant deserted duty, and entitlement to remedies. Relying on the Seabolo distinction between desertion and absence without leave, the court found the Claimant had communicated genuine fears for his safety by email dated 22nd August before returning to Nairobi, and that the Respondent knew of and the reasons for his exit; desertion was therefore not proved. Even if he had deserted, no notice or hearing was accorded as required by Section 41, and the Respondent bore the burden of proving procedural fairness. The court held the termination unfair, declaring the dismissal wrongful and ordering a certificate of service. The five months' salary claim was refused as unjust enrichment, but one month's admitted salary (USD 5,625), three months' notice pay (USD 16,875) and four months' compensation (USD 22,500) were awarded, totalling USD 45,000, with interest at court rates (September 2008 salary interest running from filing) and costs to the Claimant. Judgment delivered on 31st January 2020 by Maureen Onyango, J.

Key legal issues

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01

Whether the Claimant deserted duty

Holding

The Claimant was not guilty of desertion; he communicated his fears for his safety and intention to return to Nairobi by email dated 22nd August, and the Respondent was aware he had left Nigeria and why

Reasoning

The court found from the email evidence that the claimant expressed genuine fear for his life due to threats from a staff member in Abuja and informed the Respondent of his decision to return. There was no response to the email and no evidence the Respondent was unaware of his exit or reasons. The court therefore found no proof of abscondment, distinguishing desertion (intention not to return) from absence without leave.

p. 4
02

Whether the termination was procedurally fair

Holding

The termination was unfair; the Claimant was issued no notice and was not accorded a hearing prior to termination as required by Section 41 of the Employment Act

Reasoning

Even assuming desertion, the employee is entitled to a fair disciplinary process under Section 41 of the Employment Act, 2007. No evidence of a disciplinary process or notice prior to termination was availed. The burden was on the Respondent to prove it accorded the Claimant a hearing, which it failed to discharge.

p. 5
03

What remedies flow from the unfair termination

Holding

Declaration of wrongful dismissal, certificate of service, one month's admitted salary (USD 5,625), three months' notice pay (USD 16,875) and four months' compensation (USD 22,500), total USD 45,000

Reasoning

The court awarded salary only for one month as admitted, finding the claim for five months' pay unsupported as no work was done. The contract provided three months' notice, so notice pay was awarded in full. Compensation of four months' salary was assessed considering the manner of termination, the position held and length of service, guided by the proportionality principle in employment remedies.

p. 5

Legal principles established

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  • Desertion requires intention not to return and is distinguishable from absence without leave
  • An employer alleging desertion must demonstrate efforts to get the employee back and must issue notice before terminating
  • Termination must satisfy both substantive justification and procedural fairness
  • Employment remedies must be proportionate and not facilitate unjust enrichment

Court orders

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  1. 1.A declaration that the Claimant's dismissal from employment is wrongful
  2. 2.An order that the Respondent issues the Claimant with a certificate of service under Section 51 of the Employment Act, 2007
  3. 3.Award of one month's salary as admitted in the sum of USD 5,625
  4. 4.Award of 3 months' salary in lieu of notice in the sum of USD 16,875
  5. 5.Award of 4 months' salary as compensation for unfair termination in the sum of USD 22,500 (total award USD 45,000)
  6. 6.Respondent to pay the Claimant's costs of the suit
  7. 7.Decretal sum to attract interest at court rates, except the September 2008 salary which attracts interest from date of filing suit

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 49
  • Employment Act, 2007Section 51
  • Constitution of Kenya, 2010Article 41(2)(b)
  • Constitution of Kenya, 2010Article 25(a)

Cases cited (15)

  • Felistas Acheha Ikatwa Vs Charles Peter Otieno
    (2018) eKLR
  • Seabolo Vs Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Stanley Omwoyo Onchweri Vs Board of Management Nakuru YMCA Secondary School
    (2015) eKLR
  • Jared Aimba Vs Fina Bank Limited
    (2016) eKLR
  • Shankar Saklani Vs DHL Global Forwarding (K) Limited
    (2012) eKLR
  • Rebecca Ann Maina & 2 Others Vs Jomo Kenyatta University of Agriculture and Technology
    (2014) eKLR
  • James Okeyo Vs Maskant Flower Limited
    (2015) eKLR
  • Liz Ayany Vs Leisure Lodges Limited
    (2018) eKLR
  • Phillemon Oseni Kidavi Vs Brinks Security Limited
    (2018) eKLR
  • Fredrick Musembi Vs George Ndungu & 2 Others (sued on behalf of the Public Service Club)
    (2016) eKLR
  • Banking Insurance Finance Union (K) Vs Co-operative Bank of Kenya Limited
    (2019) eKLR
  • Vincent Abuya Obunga Vs Mast Rental Services Limited
    (2019) eKLR
  • Sophia Wambui Muthoni Vs Muramati Sacco Society Limited
    (2014) eKLR
  • Walter Ogal Anuro -v- Teachers Service Commission
    (2013) eKLR
  • D. K. Njagi Marete Vs. Teachers Service Commission
    Industrial Cause No 379 of 2009
Jurisdiction invoked
Original employment and labour relations jurisdiction under Article 162(2) of the Constitution (Industrial Court/ELRC); not expressly quoted in the judgment

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, "John Wanjohi Wakahora v Linksoft Communications Systems Limited [2020] KEELRC 1721 (KLR)", Case Analysis (2020). Cause No 98 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1721/eng@2020-01-31

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