Elphas Omondi Otieno v Collindale Security Limited [2021] KEELRC 93 (KLR)

The Claimant testified he was involved in a motorbike accident on 20th November 2015, was treated at Mbagathi District Hospital at the Respondent's expense, and was advised one month's bed rest. He said he informed Mr. Maina in the control room and left the sick sheet at the Khoja Mosque assignment. The Respondent's Human Resource Manager asserted desertion and that she tried to contact the Claimant, but confirmed that the Respondent's evidence of desertion was not filed, undermining the desertion allegation.

The Claimant pleaded that the termination contravened section 41 of the Employment Act, which requires notification and a hearing before termination on grounds of misconduct. He testified he was not heard prior to termination. The Respondent's witness claimed she gave the Claimant an opportunity to explain himself, but this was contradicted by her evidence that the Respondent considered him a deserter and that its supporting evidence was never filed. The Claimant's return from sick leave, with the Respondent having catered for his medical expenses, further undermined the desertion basis.

The memorandum of claim sought a declaration that the termination was unlawful and unfair, payment of Kshs. 256,452 in terminal dues, costs and interest, and a certificate of service under section 51 of the Employment Act. The Respondent's witness testified that the Claimant cleared with the company, was paid, and that a certificate of service was prepared but the Claimant declined to collect it. The judgment text provided ends abruptly and does not reproduce the assessment of dues or the final orders.