Evans Wanjala Barasa v Queen of Apostles Seminary, the Registered Trustees (sued as proprietors of Queen of Apostle Seminary School) [2021] KEELRC 900 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee for 'desertion' without proving you tried to reach them, and without a fair hearing, is unlawful.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for termination (alleged desertion)
The Respondent had no valid reason to terminate summarily; the Claimant kept the Respondent informed of a family crisis and the delay warranted a warning at most, not dismissal on desertion
The Court found telephone calls and text messages confirmed by both parties showed the Claimant communicated his family crisis and intention to return. There was no evidence he was expected at work on 29th August 2016, no reopening date was indicated, and the Respondent proved no efforts to have him resume duty as desertion requires.
Fairness of the procedure followed
The summary dismissal was procedurally flawed; the Claimant was never given the hearing mandated by Section 41 of the Employment Act
The Respondent had advertised the Claimant's position by 2nd September 2016 and replaced him by 9th September, showing the decision to dismiss was pre-made. When he reported on 6th September he was only asked to explain and then handed a dismissal letter the same day, denying him the Section 41 right to be accompanied and heard.
Counterclaim for monies allegedly owed
The counterclaim failed; the debts were not proved and the Respondent lacked standing to sue on behalf of students
Letters allegedly from students were undated or dated after termination and their authorship could not be proved. Payslips showed the alleged dues (welfare, electricity, water, housing) were already being deducted from the Claimant's salary. Claims on behalf of students, even if legitimate, should be tried separately.
Late-filed Respondent's submissions
The Court declined to entertain submissions filed after judgment was written
Submissions were due before 15th September 2021 but were filed on 28th September 2021, two days before delivery of judgment. The assertion that the Respondent's Advocate was unwell was unsupported by medical documents, and judgment had already been concluded.
Legal principles established
#- An employer alleging desertion must demonstrate efforts made towards getting the employee to resume duty, including notice that termination on the ground of desertion is being considered
- A deserting employee is one who leaves with no intention to return
- Before termination on grounds of misconduct, the employer must inform the employee of the charges and afford a hearing in the presence of a person of the employee's choice
Court orders
#- 1.Declaration that the Claimant was unfairly and unlawfully terminated
- 2.One month's salary in lieu of notice of Kshs.47,968
- 3.Compensation of two months' salary of Kshs.95,930 under Section 49(a) and (c) of the Employment Act
- 4.Costs plus interest at Court rates from the date of judgment, subject to statutory deductions
- 5.Certificate of service to be issued forthwith
- 6.The Respondent's counterclaim prayers dismissed forthwith, total award Kshs.143,904
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act; Article 159(2)(d) and Article 48 of the Constitution cited in the delivery order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evans Wanjala Barasa v Queen of Apostles Seminary, the Registered Trustees (sued as proprietors of Queen of Apostle Seminary School) [2021] KEELRC 900 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/900/eng@2021-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.