Ndung’u Kiarie v Weithaga Farm Extension Limited [2022] KEELRC 292 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Date and nature of employment
Employment commenced on 21st June 2010 as a casual worker at a daily rate, not in 1994 as pleaded
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.
Termination versus absconding of duty
The Respondent failed to prove the Claimant absconded duty; termination was unfair for want of procedural fairness
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.
Underpayment
The Claimant was underpaid in 2012 and 2013 relative to the Regulation of Wages (Agricultural Industry) Orders
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.
Compensation quantum
Three months' salary awarded under Section 49(1)(c) Employment Act
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.
Legal principles established
#- 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
#- 1.Declaration that the termination of the Claimant's employment contract was unfair and unlawful
- 2.One month's salary in lieu of notice of Kshs.6,152.70
- 3.Equivalent of three (3) months' compensation of Kshs.18,458.10
- 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.Costs of the suit to the Claimant
- 6.Interest at Court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Labour Institutions Act (employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.