John Mwashi Ashanji v Mshamba Housing Co-operative Society [2021] KEELRC 235 (KLR)
The bottom line
#A Kenyan court ruled that even when an employee absconds, an employer must follow proper procedure or the dismissal is unfair.
What this practically means
#Executive summary
#Key legal issues
#Employment status and duration of service
The Claimant was not a permanent employee from 2006; parties had an employer/employee relationship in 2015 for about 5 months, the Claimant being a casual.
The Claimant adduced no documentary evidence of employment from 2005 or transition to permanent terms in 2006 - no payslip, appointment letter, NSSF statement or warning letter. The Court found it inconceivable that the salary remained Kshs.7,000 from 2005 to 2015. RW1 testified he was engaged by the new Board in 2015 and absconded after about two months, though the Court found about 5 months of service in 2015.
Procedural fairness of termination
The termination was unfair for want of procedural propriety despite the Board meeting the Claimant twice failed to attend.
Although the Respondent credibly showed the Claimant absconded and was summoned twice to the Board, it led no evidence of how he was summoned, produced no charges, no notice to show cause, no dismissal letter and never notified the Labour Office. The employer therefore did not fully discharge its procedural obligations under Sections 41 and 45 of the Employment Act.
Reliefs
Awarded pay in lieu of notice (Kshs.7,000), leave pay (Kshs.2,042) and two months' salary compensation; declined service pay, 9-year service payment and 14% interest.
The notice claim was uncontroverted. Leave is a statutory entitlement proportionate to about 5 months' service. Under Section 49(1)(c) read with 49(4), compensation was scaled to two months considering short service, the Claimant's substantial contribution to the termination and his failure to demand dues for nearly a year.
Legal principles established
#- A fair termination must comply with Sections 41 and 45 of the Employment Act; even where a valid reason exists, flawed procedure renders the termination unfair.
- An employer dealing with an absconding employee must take reasonable steps such as a notice to show cause, a dismissal letter or notification of the Labour Office to bring the matter to closure.
Court orders
#- 1.Judgment entered for the Claimant for the sum of Kshs.23,042/- with costs
- 2.Interest at Court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Mwashi Ashanji v Mshamba Housing Co-operative Society [2021] KEELRC 235 (KLR)", Case Analysis (2021). Cause No 1658 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/235/eng@2021-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.