Gatimu v Uzuri Foods Limited (Cause 2195 of 2017) [2022] KEELRC 19 (KLR)
The bottom line
#Even when an employee truly absconds, a Kenyan employer must still follow fair procedure or pay compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the employer had a valid and fair reason to dismiss the Claimant
Yes - dismissal for absconding duty from 24th May 2017 was substantively justified
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.
Whether the procedure for termination complied with Section 41 of the Employment Act
No - the termination was procedurally flawed and therefore unfair
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.
Whether the Claimant was entitled to compensation under Section 49 of the Employment Act
Yes - equivalent of five months' gross salary awarded despite substantive justification
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.
Legal principles established
#- 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
#- 1.One month's salary in lieu of notice
- 2.Security deductions from October 2016 till the date of termination
- 3.Equivalent of five months' gross salary as compensation
- 4.Certificate of service
- 5.Costs of the suit to the Claimant
- 6.Interest at court rates from date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.