Wicliffe Omondi Manyala v Rotex Suppliers and Service Limited [2022] KEELRC 204 (KLR)
The bottom line
#A Kenyan employer claiming an employee deserted duty must prove they tried to trace the worker and give notice—otherwise the dismissal is unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was dismissed or absconded duty
The court found the Claimant was terminated unprocedurally rather than having absconded, as the Respondent failed to demonstrate efforts to trace him or give notice of contemplated desertion-based termination.
The court noted the absence of fundamental records - no written contract and no letter referencing desertion. Under Section 9(2) of the Employment Act the employer must keep written contracts. The authorities require an employer alleging desertion to show efforts to establish the employee's whereabouts and to give notice of intended termination. The Respondent did neither, so the evidence favoured oral, unprocedural termination.
Whether the termination was substantively and procedurally fair
The termination failed both tests - no valid and fair reason was proved and no fair procedure under Section 41 was followed.
Section 45(2) of the Employment Act renders a termination unfair if the employer fails to prove a valid and fair reason and a fair procedure. The Respondent gave no valid reason beyond alleging desertion, and did not hear the employee's representations as required by Section 41. The Respondent therefore failed on both substantive justification and procedural fairness.
Whether delayed service of summons invalidated the suit
The contention was dismissed as there was no affidavit of service or evidence of lack of leave; the court would not presume weighty issues and gave the Claimant the benefit of doubt.
The Respondent alleged summons were served one year and two months after filing, but produced no affidavit of service and no evidence that leave for delayed service was not granted. The court held it could not presume such weighty issues and resolved the point in the Claimant's favour.
Legal principles established
#- An employer alleging desertion must demonstrate efforts to establish the employee's whereabouts and give notice that termination on grounds of desertion is being considered.
- An employer has a statutory duty to reduce the contract of service to writing under Section 9(2) of the Employment Act.
- A fair termination requires both substantive justification (valid reason) and procedural fairness.
Court orders
#- 1.One month's salary of Kshs.12,000/= in lieu of notice
- 2.September 2014 salary of Kshs.12,000/= awarded
- 3.One month's salary of Kshs.12,000/= as damages (compensation) having regard to one year of service
- 4.Judgment entered for the Claimant for a total of Kshs.36,000/=
- 5.Claimant awarded costs of the suit
- 6.Interest at court rates till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wicliffe Omondi Manyala v Rotex Suppliers and Service Limited [2022] KEELRC 204 (KLR)", Case Analysis (2022). ELRC Cause (Nairobi) - Claimant's memorandum of claim dated 9th June 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/204/eng@2022-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.