Kitela v Nesco Services Limited (Cause 1649 of 2017) [2022] KEELRC 110 (KLR)
The bottom line
#A Kenyan employer claiming an employee absconded must prove it tried to contact them and give a hearing, or the dismissal is unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant absconded or was dismissed
The claimant did not abscond duty but was dismissed at the behest of RW1, after which RW2 employed him.
Despite a close relationship and shared residence, RW1 never contacted the claimant about his absence for nearly two months, and a guard's absence is hard to miss. RW2's hiring of the claimant without enquiry was implausible. The court applied Mary Mumbi Kariuki, holding that an employer alleging abscondment must show it issued an ultimatum or show-cause, which the respondent never did.
Whether the termination was fair and lawful
The dismissal was unfair and unlawful for breach of section 41 of the Employment Act.
The claimant received neither notice nor a hearing. Even on the respondent's own version of abscondment, a ground for summary dismissal under section 44(4)(a), it took no disciplinary action. Section 41 is mandatory: the employer had to notify the claimant of the reasons for termination in a language he understands, in the presence of a fellow employee or union representative. Non-compliance rendered the dismissal unfair and unlawful.
Whether the counterclaim was justified
The counterclaim failed in its entirety.
The notice-pay counterclaim fell away once unlawful dismissal was found. The claim for 17 days of advance leave failed for want of evidence; the employer, responsible for employment records, could easily have proved it but did not.
Legal principles established
#- Where an employer alleges that an employee absconded, it must demonstrate that it took steps to contact the employee or issue a show-cause; failure to do so casts doubt on the abscondment version.
- Section 41 of the Employment Act is mandatory and requires notification of reasons for termination and a hearing before dismissal.
Court orders
#- 1.An award of compensatory damages equivalent to seven (7) months' gross salary being Kshs 68,466.65
- 2.An award of one (1) month's salary in lieu of notice, being the sum of Kshs 9,780.95
- 3.Total award of Kshs 78,247.60 with interest at Court rates from the date of Judgment until payment in full
- 4.The counterclaim is dismissed
- 5.The respondent shall bear the costs of this claim
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination claim and counterclaim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitela v Nesco Services Limited (Cause 1649 of 2017) [2022] KEELRC 110 (KLR)", Case Analysis (2022). Cause No 1649 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/110/eng@2022-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.