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ELRCDismissedNot stated in the judgment (Memorandum of Claim filed 18th January 2017)· [2021] KEELRC 87 (KLR)

Hezron Ngaira Sereuwa v Pemwe Services Limited [2021] KEELRC 87 (KLR)

Employment and Labour Relations Court
14 December 2021
NMNzioki wa Makau
1,731 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that a guard who failed to return to work after police release abandoned the job, so he was never unfairly dismissed.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Night Guard from around March 2000 at a salary of Kshs. 6,000/- per month, claimed unfair and unlawful dismissal and non-payment of terminal dues. He alleged that on the night of 29th July 2016, after reporting a suspicious presence at the premises, he was arrested, held at the police station and released without charge, and that on reporting to work the following evening the Respondent's Manager ordered him never to return. He sought one month's salary in lieu of notice, salary underpayments, unpaid leave, house allowance, overtime, public holiday pay, service/gratuity pay and 12 months' salary as compensation. The Respondent denied dismissing him, contending he was involved in an attempted robbery at Kenplastics Limited, was arrested and released, and thereafter absconded duty of his own volition while still holding the Respondent's property. It relied on the requisition to compel attendance showing he was to report back on 1st August 2016. The court found the Claimant failed to dislodge the evidence that he was invited back and declined to report, had no letter evidencing attempts to resume duty, and remained in possession of the Respondent's property, indicating he was never dismissed. Holding that an employer is not duty-bound to look for an absconding employee, the court dismissed the entire suit with no order as to costs.

Key legal issues

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01

Whether the Claimant was dismissed or deserted duty

Holding

The court held the Claimant was not dismissed but absconded duty after his release from police custody, declining to report back as directed

Reasoning

The court accepted the Respondent's evidence that a supervisor's response to an attempted theft led to the Claimant's arrest, and that upon release he failed to report back on 1st August 2016 as shown by the requisition to compel attendance. The Claimant produced no letter evidencing attempts to resume duty, and remained in possession of the Respondent's property, which the court took as showing he was never dismissed.

p. 2
02

Burden of proof on the termination claim

Holding

The Claimant failed to discharge the burden of proving that he was terminated; his claim was therefore without merit

Reasoning

Applying the principle that he who alleges must prove, the court found the Claimant's assertion that a manager sent him away unsupported by any documentary evidence. His continued possession of the Respondent's property contradicted the assertion of dismissal, and his failure to report back on the mandated date defeated the claim.

p. 2

Legal principles established

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  • When an employee absconds work, the employer is not duty-bound to look for the employee, as the employee cannot be forced to come to work

Court orders

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  1. 1.The Claimant's suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 44(a)
  • Employment ActSection 36
  • Employment ActSection 28
  • Employment ActSection 31
  • Employment ActSection 35(5)
  • Employment ActSection 49

Cases cited (5)

  • Kenya Union of Commercial Food and Allied Workers v Meru North Fanners Sacco Limited
    [2014] eKLR
  • Joseph Nzioka v Smart Coatings Limited
    [2017] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Peter Odhiambo Oriwo v Labchem Limited
    [2012] eKLR
  • Mwendwa Ndoo Mainga v Katrina Hotel Limited
    [2020] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act; Employment and Labour Relations Court Act) - not expressly cited in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Hezron Ngaira Sereuwa v Pemwe Services Limited [2021] KEELRC 87 (KLR)", Case Analysis (2021). Not stated in the judgment (Memorandum of Claim filed 18th January 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/87/eng@2021-12-14

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