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ELRCPartially AllowedCause No 1760 of 2017· [2021] KEELRC 699 (KLR)

Joash Nyongesa Makokha v Amboseli Court Limited [2021] KEELRC 699 (KLR)

Employment and Labour Relations Court
22 October 2021
SRStella Rutto
2,493 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employer must prove desertion and hold a fair hearing before firing a worker, awarding the guard compensation.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent from 31 May 2014 at a monthly salary of Kshs 10,000, alleged he was sent on mandatory leave in September 2015 and never recalled, and was summarily dismissed without a hearing. The respondent contended he deserted duty from 2 September 2015 and had earlier been insubordinate, arguing desertion made procedural fairness impracticable. The court distilled three issues: desertion or termination; fairness of any termination; and entitlement to reliefs. It found the respondent's own witness admitted the claimant was dismissed for gross misconduct for failure to follow orders, and that the employer never attempted to contact the claimant through known channels before treating him as having deserted. The court applied Mary Mumbi Kariuki and held desertion was not proved. On fairness, applying section 43 and 45(2) of the Employment Act and the Court of Appeal decision in Saboke, the respondent failed to prove valid reasons for dismissal, and produced no invitation or minutes evidencing the disciplinary hearing it alleged, breaching section 41(1). The termination was held unfair and unlawful. On reliefs, the court awarded one month's salary in lieu of notice under section 35(1)(c) and compensatory damages equivalent to two months' gross salary (Kshs 20,000), considering the roughly one year three months of service. Claims for unpaid leave, house allowance, unpaid public holidays, underpayment and overtime were denied for lack of evidence, provision of accommodation, and pay above the applicable minimum wage. Judgment of Kshs 30,000 with interest was entered, with costs to the claimant.

Key legal issues

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01

Desertion or termination

Holding

The respondent failed to prove desertion; the claimant was terminated

Reasoning

RW1 admitted the claimant was dismissed for gross misconduct for failing to follow orders. Given the known channels of communication between the parties, the employer's failure to attempt to contact the claimant or commence disciplinary proceedings for desertion made its desertion claim untenable.

p. 2
02

Substantive fairness of termination

Holding

Termination was substantively unfair; no evidence supported the alleged gross misconduct

Reasoning

The respondent asserted insubordination and gross misconduct but adduced no evidence to prove valid reasons. Section 43 places the burden on the employer to prove reasons for termination; failure discharges into unfairness under section 45(2).

p. 3
03

Procedural fairness

Holding

Procedural fairness was not accorded

Reasoning

Section 41(1) requires notification of reasons and a hearing in the presence of another employee or representative. RW1 claimed a disciplinary hearing occurred but produced no invitation or minutes, so the procedural fairness burden was not discharged.

p. 3
04

Reliefs

Holding

Notice pay and two months' compensation awarded; other heads denied for lack of proof

Reasoning

Section 35(1)(c) mandates one month's notice for a monthly-paid employee. Compensation was limited to two months' gross salary given the roughly one year three months' service. Leave, house allowance, public holidays, underpayment and overtime claims failed for want of evidence or because accommodation was provided and pay exceeded the minimum wage.

p. 3

Legal principles established

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  • An employer alleging desertion must prove it attempted to contact the employee through known channels and commence disciplinary process before dismissal
  • Under section 43 of the Employment Act the legal burden is on the employer to prove reasons for termination, failing which the termination is unfair
  • An employer must prove procedural fairness under section 45(2)(c) and section 41(1), including evidence of a disciplinary hearing

Court orders

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  1. 1.Judgment entered in favour of the claimant against the respondent: one month's salary in lieu of notice (Kshs 10,000.00) and compensation equivalent to 2 months' gross salary (Kshs 20,000.00), totalling Kshs 30,000.00
  2. 2.The award shall attract interest at court rates from the date of Judgment until payment in full
  3. 3.The respondent shall bear the costs of the suit

Authorities

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Legislation

  • Employment Actsection 43(1)
  • Employment Actsection 45(2) and 45(2)(c), 45(4) and 45(5)
  • Employment Actsection 46
  • Employment Actsection 41(1)
  • Employment Actsection 44(2)
  • Employment Actsection 35(1)(c)
  • Regulation of Wages (General) (Amendment) Order2015 minimum wage for night watchman
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (5)

  • Kenya Union of Domestic, Hotels, Educational Institutions & Hospitals Workers vs Mombasa Sports Club
    Mombasa ELRC Cause No. 440 of 2013
  • Simon Mbithi Mbane vs Inter Security Services Limited
    (2018) eKLR
  • Joseph Nzioka vs Smart Coatings Limited
    (2017) eKLR
  • Mary Mumbi Kariuki v Director, Pamoja Women Development Programme
    [2015] eKLR
  • Chairman Board of Directors (National Water Conservation and Pipeline Corporation) v Meshack M. Saboke & 2 others
    Nairobi Civil Appeal No. 241 of 2015
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination claim)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joash Nyongesa Makokha v Amboseli Court Limited [2021] KEELRC 699 (KLR)", Case Analysis (2021). Cause No 1760 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/699/eng@2021-10-22

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