John Wanjohi Wakahora v Linksoft Communications Systems Limited [2020] KEELRC 1721 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant deserted duty
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
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.
Whether the termination was procedurally fair
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
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.
What remedies flow from the unfair termination
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
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.
Legal principles established
#- 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
#- 1.A declaration that the Claimant's dismissal from employment is wrongful
- 2.An order that the Respondent issues the Claimant with a certificate of service under Section 51 of the Employment Act, 2007
- 3.Award of one month's salary as admitted in the sum of USD 5,625
- 4.Award of 3 months' salary in lieu of notice in the sum of USD 16,875
- 5.Award of 4 months' salary as compensation for unfair termination in the sum of USD 22,500 (total award USD 45,000)
- 6.Respondent to pay the Claimant's costs of the suit
- 7.Decretal sum to attract interest at court rates, except the September 2008 salary which attracts interest from date of filing suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.