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ELRCPartially AllowedCause No 2195 of 2017· [2022] KEELRC 19 (KLR)

Gatimu v Uzuri Foods Limited (Cause 2195 of 2017) [2022] KEELRC 19 (KLR)

Employment and Labour Relations Court
5 May 2022
3,982 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Even when an employee truly absconds, a Kenyan employer must still follow fair procedure or pay compensation.

What this practically means

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Executive summary

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The Claimant sued the Respondent for unfair termination and unpaid terminal dues, seeking a declaration that his termination was unfair, terminal benefits totalling Kshs.6,486,164.51, a certificate of service, costs and interest. He was employed from 26th November 2002 as a sales person. The Respondent maintained he was lawfully dismissed on 2nd June 2017 for absconding duty from 24th May 2017. The Court framed two issues: whether the termination was lawful or unfair, and entitlement to reliefs. On substance, the Court found the employer proved on a balance of probabilities that the Claimant absconded duty, noting he had no payslips for May and June 2017 and led no evidence of reporting arrangements. However, on procedure, the Respondent confirmed no disciplinary hearing was conducted, produced no postal evidence that the dismissal letter was posted, and did not report the desertion to the Labour Office; the authority it relied on was distinguished. Section 41 of the Employment Act was thus not complied with, rendering the termination procedurally flawed and unfair. On reliefs, the Court awarded one month's salary in lieu of notice, security deductions from October 2016 to termination, five months' gross salary as compensation (reduced from twelve months given the Claimant's contribution to the termination, length of service and absence of appeal), a certificate of service, costs and interest. Claims for unpaid salary for May, June and July 2017, security deductions from 2002, overtime of over Kshs.5.5 million and withheld work injury compensation of Kshs.104,933/- were declined for want of evidence. Judgment was delivered virtually at Nairobi on 5th May 2022 by Dr. Jacob Gakeri, J.

Key legal issues

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01

Whether the employer had a valid and fair reason to dismiss the Claimant

Holding

Yes - dismissal for absconding duty from 24th May 2017 was substantively justified

Reasoning

The Court weighed the contradictory accounts. The Claimant claimed he reported to work daily but was not assigned duties, yet led no evidence on why he was not paid for May and June 2017 or whom he reported to. The supervisor's letter recording the Thika Road route assignment corroborated abscondment, which explained the non-payment of salary for the period. The claim that the dismissal was motivated by compensation demands was unsupported.

p. 6
02

Whether the procedure for termination complied with Section 41 of the Employment Act

Holding

No - the termination was procedurally flawed and therefore unfair

Reasoning

RW1 confirmed the Claimant was never invited to a disciplinary hearing nor taken through any disciplinary process. The Respondent produced no postal record of posting the dismissal letter and could not identify who called the Claimant or when. The authority it relied on was distinguishable because there the desertion was reported to the Labour Office; no such report was made here.

p. 7
03

Whether the Claimant was entitled to compensation under Section 49 of the Employment Act

Holding

Yes - equivalent of five months' gross salary awarded despite substantive justification

Reasoning

Having found procedural unfairness, the Court applied Section 49(1)(c) subject to Section 49(4) factors: the Claimant had served about fourteen years and seven months and wished to continue; he substantially contributed to the termination by absconding; and he did not appeal the dismissal. These factors justified a reduction from twelve months to five months.

p. 8

Legal principles established

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  • A lawful and fair termination must be both substantively justifiable and procedurally fair
  • Section 41 of the Employment Act requires notification and hearing before termination, and non-compliance renders termination unfair
  • An employer alleging posting of a dismissal letter must tender evidence of posting; unsupported assertions do not amount to reasonable attempts to reach an employee

Court orders

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  1. 1.One month's salary in lieu of notice
  2. 2.Security deductions from October 2016 till the date of termination
  3. 3.Equivalent of five months' gross salary as compensation
  4. 4.Certificate of service
  5. 5.Costs of the suit to the Claimant
  6. 6.Interest at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(4)(a)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 45(5)
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 49(4)
  • Work Injury Benefits ActAct No. 13 of 2007
  • Workmen Compensation ActNot specified
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (5)

  • Julius Kyalo Malonza v Ruth Osolo t/a Eraeva Catering Services
    [2021] eKLR
  • Catherine Mugure v Hill Court Hotel & Spa Limited
    [2019] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Naima Khamis v Oxford University Press [EA] Ltd
    [2017] eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)

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, "Gatimu v Uzuri Foods Limited (Cause 2195 of 2017) [2022] KEELRC 19 (KLR)", Case Analysis (2022). Cause No 2195 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/19/eng@2022-05-05

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