David Opondo Onyango v Apex Steel Limited [2022] KEELRC 421 (KLR)
The bottom line
#Kenya's Employment Court ruled employers cannot claim an employee deserted without first trying to contact them and following fair dismissal procedures.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was unlawfully terminated or absconded duty
The court found the Claimant was terminated by the Human Resource Manager and that the Respondent adduced no evidence of a disciplinary process; termination was unfair for non-compliance with section 41 of the Employment Act
The court held that the Respondent led no evidence to contradict the Claimant's testimony on termination by Mariam Matheka. The letter to the Labour Office relied on as proof of desertion was silent on the efforts made to contact the 34 listed employees, and RW1's claim that there was no phone contact was contradicted by the DOSH form which had the Claimant's telephone number. No show cause letter or disciplinary process was evidenced, breaching section 41, rendering the termination unfair under section 45.
Whether the Claimant was entitled to notice pay
Granted, Kshs.15,000/= under section 49(1)(a) since no notice of termination was issued
Because the Respondent did not accord the Claimant any notice of termination, the court invoked section 49(1)(a) of the Employment Act to award one month's salary in lieu of notice.
Whether the Claimant was entitled to compensation for unfair termination
Granted at 3 months' salary (Kshs.45,000/=), not the 12 months sought
The court exercised its discretion under section 49(1)(c), considering that the Claimant made no effort to appeal the decision internally, served only about one year, and had another pending suit against the Respondent arising from the workplace injury.
Whether the Claimant was entitled to a Certificate of Service
Granted under section 51(1) of the Employment Act
The court held the Claimant entitled to a certificate of service as provided by section 51(1) of the Employment Act.
Claims for June 2016 salary balance and annual leave pay
Both declined for want of evidence
The June 2016 salary claim failed because the Claimant was non-committal on the termination date, his bank statements did not show June payments, and having branded the Respondent's payment lists fabricated he could not rely on them for relief. The leave claim failed because no evidence of entitlement, days taken or computation was led.
Legal principles established
#- An employer claiming that an employee deserted duty must demonstrate efforts made towards getting the employee to resume duty and must at the very least issue notice that termination on the ground of desertion is being considered
- Dismissal for absconding must be preceded by evidence of reasonable attempts to contact the employee and a show cause letter
- Termination is unfair where the employer fails to comply with section 41 of the Employment Act
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for one month salary in lieu of notice of Kshs.15,000/=
- 2.Award of 3 months' salary as compensation for unfair termination of Kshs.45,000/=
- 3.Order for issuance of a Certificate of Service
- 4.Total award of Kshs.60,000/= with costs
- 5.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 and Labour Relations Act over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kibisu v Bird (Cause 296 of 2017) [2025] KEELRC 1249 (KLR)[2025] KEELRC 1249 (KLR)30 Apr 2025followed
Cite this brief
#Cite this brief
Caselaw, "David Opondo Onyango v Apex Steel Limited [2022] KEELRC 421 (KLR)", Case Analysis (2022). Cause No. 1933 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/421/eng@2022-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.