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ELRCDismissedCivil Appeal No E003 of 2021· [2021] KEELRC 319 (KLR)

New World Stainless Steel Limited v Cosmas Mbalu Munyasya [2021] KEELRC 319 (KLR)

Employment and Labour Relations Court
2 December 2021
LNLINNET NDOLO
1,289 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer claiming an employee absconded must prove it with evidence of efforts to contact them, or face full termination awards.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Nairobi against a judgment of the Senior Principal Magistrate (D.W. Mburu, SPM) delivered on 4th December 2020, in which the Respondent was awarded one month's salary in lieu of notice (Kshs. 16,000), salary for June 2018 (Kshs. 16,000), compensation for unlawful termination (Kshs. 96,000), a security deposit (Kshs. 13,600), plus costs and interest. The Appellant, the employer, raised grounds attacking the finding of unfair termination under Section 47(5) of the Employment Act, the burden of proof under Sections 107 and 108 of the Evidence Act, and each of the awards. The court, guided by Selle v Associated Motor Boat Company Ltd, re-evaluated the evidence as a first appellate court. It held that an employer alleging absconding bears the burden of proving it, including showing efforts to reach the employee before termination, drawing on Seablo v Belgravaia Hotel and Kenyan authorities. The trial court had found no evidence of absence, no disciplinary minutes, and no fair hearing; the court agreed and upheld the finding of unlawful and unfair termination. On remedies, applying Catholic Diocese of Kisumu v Tete, the court declined to interfere with the discretionary compensatory award and confirmed the notice pay. It also confirmed the June 2018 salary award, the employer having adduced no proof of payment, and the admitted security deposit claim. The appeal was dismissed in its entirety with costs to the Respondent in both courts.

Key legal issues

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01

Whether the Respondent proved unlawful and unfair termination

Holding

The finding of unfair termination was affirmed; the employer failed to prove absconding and failed to accord the employee a fair hearing

Reasoning

The appellant's defence was that the respondent absconded duty, which placed the burden of proving absconding on the employer. The employer had to show efforts to reach out to the employee before termination. The trial magistrate found no evidence of absence, no disciplinary minutes or records, and no fair hearing. This court, re-evaluating the evidence as a first appeal, agreed and saw no reason to interfere.

p. 2
02

Whether the trial court's remedies ought to be disturbed

Holding

All the remedies awarded were confirmed: notice pay, June 2018 salary, compensation for unlawful termination, and the security deposit

Reasoning

Compensation for unlawful termination is a discretionary award which an appellate court may not disturb absent wrong principles or an inordinately high or low figure. Having affirmed the finding of unfair termination, the notice pay followed. The burden was on the appellant to prove payment of June 2018 salary, and no evidence was tendered. The security deposit claim was admitted and payable.

p. 3

Legal principles established

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  • Where an employer alleges that an employee absconded duty, the burden lies on the employer to prove the absconding, including evidence of efforts made to reach out to the employee before terminating employment
  • Absconding or desertion differs from absenteeism: a deserting employee forms the intention not to return to work, and the employer may deduce that intention from the facts
  • An appellate court will not interfere with a discretionary award of compensation for unlawful termination unless the trial court proceeded on wrong principles or arrived at an entirely erroneous estimate

Court orders

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  1. 1.The appeal fails and is dismissed with costs to the Respondent in this Court and the court below
  2. 2.The trial court's award of one month's salary in lieu of notice (Kshs. 16,000) is confirmed
  3. 3.The award of salary for June 2018 (Kshs. 16,000) is confirmed
  4. 4.The award of compensation for unlawful termination (Kshs. 96,000) is confirmed
  5. 5.The award of security deposit (Kshs. 13,600) is confirmed
  6. 6.Costs plus interest as awarded by the trial court stand

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Evidence ActSections 107 and 108

Cases cited (5)

  • Selle v Associated Motor Boat Company Ltd
    [1968] E.A 123
  • Seablo v Belgravaia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    [2015] eKLR
  • Dickson Matingi v Db Schenker Limited
    [2016] eKLR
  • Catholic Diocese of Kisumu v Tete
    [2004] eKLR
On appeal from
Senior Principal Magistrate's Court (D.W. Mburu, SPM)
Not stated in judgment
Jurisdiction invoked
First appeal from the magistrates' court under the Employment Act framework (appellate jurisdiction of the Employment and Labour Relations Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "New World Stainless Steel Limited v Cosmas Mbalu Munyasya [2021] KEELRC 319 (KLR)", Case Analysis (2021). Civil Appeal No E003 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/319/eng@2021-12-02

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