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ELRCPartially AllowedMemorandum of Claim dated 2nd December 2015 (amended 26th January 2018, filed 26th September 2018)· [2022] KEELRC 292 (KLR)

Ndung’u Kiarie v Weithaga Farm Extension Limited [2022] KEELRC 292 (KLR)

Employment and Labour Relations Court
21 April 2022
3,973 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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A Kenyan court ruled a farm worker's dismissal unfair because the employer never tried to contact him before treating his absence as desertion.

What this practically means

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Executive summary

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The Claimant sued the Respondent alleging unlawful and unfair termination of employment on 14th October 2014 and claiming terminal dues and compensatory damages of Kshs.1,175,641.80, comprising notice pay, house allowance, untaken leave, service pay, underpayment and compensation for unfair dismissal. The Respondent denied employing the Claimant in 1994, asserting he was a casual tractor driver engaged on need basis from 2010/2011, and contended that on 14th October 2013 the Claimant absconded duty after being reprimanded for carrying workers on the tractor, and that no termination occurred. The Court framed three issues: the date of employment, whether employment was terminated or the Claimant absconded, and entitlement to reliefs. The Court found no evidence of employment from 1994 and, relying on the unchallenged muster roll, held the Claimant was employed as a casual worker from 21st June 2010. Although the Respondent alleged absconding, it made no effort to contact the Claimant despite having his phone number, issued no notice to show cause, and gave no hearing; the Court held the Respondent failed to prove desertion and found the termination unfair for want of procedural fairness. The Claimant was awarded a declaration of unfair termination, one month's salary in lieu of notice (Kshs.6,152.70), three months' compensation (Kshs.18,458.10) given his three years' service, his conduct, and substantial contribution to the dismissal, and an order for counsel to compute underpayment for 2012 and 2013 against the Regulation of Wages (Agricultural Industry) Orders. Claims for house allowance, leave, service/gratuity and 2010-2011 underpayment were declined. Judgment dated 21st April 2022 at Nairobi, delivered virtually by Dr. Jacob Gakeri, J.

Key legal issues

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01

Date and nature of employment

Holding

Employment commenced on 21st June 2010 as a casual worker at a daily rate, not in 1994 as pleaded

Reasoning

The Claimant tendered no documentary evidence of the 1994 employment date, which was a public holiday. The unchallenged muster roll showed he first earned wages in July 2010 having commenced work on 21st June 2010. Payment records showed he worked between 10 and 16 days a month and was paid only for days worked, corroborating casual, need-based engagement.

p. 4
02

Termination versus absconding of duty

Holding

The Respondent failed to prove the Claimant absconded duty; termination was unfair for want of procedural fairness

Reasoning

The Respondent took no steps to contact the Claimant despite having his phone number and knowing his residence, issued no notice to show cause and did not demonstrate efforts to have him resume duty as required in desertion cases. Substantive justification and procedural fairness are both required for a fair termination under Sections 41, 43, 45 and 47(5) of the Employment Act.

p. 5
03

Underpayment

Holding

The Claimant was underpaid in 2012 and 2013 relative to the Regulation of Wages (Agricultural Industry) Orders

Reasoning

Agreed wages cannot fall below the statutory minimum prescribed by Wage Orders. The 2010 and 2011 minimums were met, but the daily wage of Kshs.227 fell below the minimums of Kshs.229.25 (Legal Notice No. 70 of 2012) and Kshs.261.35 (Legal Notice No. 196 of 2013). The Claimant need not prove the law.

p. 6
04

Compensation quantum

Holding

Three months' salary awarded under Section 49(1)(c) Employment Act

Reasoning

The Court considered that the Claimant served for at least three years and wished to continue, did not appeal the decision of Mr. Michael but simply walked away, and substantially contributed to the dismissal. These Section 49(4) factors justified three months' rather than twelve months' gross salary.

p. 6

Legal principles established

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  • An employer claiming desertion must demonstrate efforts made to get the employee to resume duty, at the very least by notice that termination on grounds of desertion is being considered
  • The cornerstone of a fair termination is substantive justification and a fair procedure
  • Parties cannot contract out of statutory minimum wage orders

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment contract was unfair and unlawful
  2. 2.One month's salary in lieu of notice of Kshs.6,152.70
  3. 3.Equivalent of three (3) months' compensation of Kshs.18,458.10
  4. 4.Counsel for the Claimant and Respondent to compute the amount by which the Claimant was underpaid and file the same in Court within 30 days for adoption and or confirmation with or without any modifications
  5. 5.Costs of the suit to the Claimant
  6. 6.Interest at Court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 159(2)(d), 48
  • Employment Act, 2007Sections 41, 43, 45(2), 47(5), 49(1)(c), 49(4)
  • Labour Institutions Act(wage orders provisions)
  • Regulation of Wages (Agricultural Industry) Orders, 2010 and 2011minimum wages
  • Legal Notice No. 70 of 2012minimum consolidated wage for tractor driver
  • Legal Notice No. 196 dated 30th July 2013minimum consolidated wage for tractor driver
  • Civil Procedure Act (Chapter 21)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (6)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    [2018] eKLR
  • Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited
    [2016] eKLR
  • Joseph Nzioka v Smart Coatings Ltd
    [2017] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Naima Khamis v Oxford University Press [EA] Ltd
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Labour Institutions Act (employment dispute)

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, "Ndung’u Kiarie v Weithaga Farm Extension Limited [2022] KEELRC 292 (KLR)", Case Analysis (2022). Memorandum of Claim dated 2nd December 2015 (amended 26th January 2018, filed 26th September 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/292/eng@2022-04-21

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