Paul Mwakio v Reliable Freight Services Ltd [2022] KEELRC 496 (KLR)
The bottom line
#A Mombasa court ruled the employer unfairly fired a driver and ordered it to pay over KSh 421,000 because it couldn't prove he abandoned his job.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant absconded duty or was unfairly terminated
The Respondent failed to prove abscondment; the termination was substantively and procedurally unfair
The Respondent gave two conflicting versions of how the Claimant left employment and proved neither. No leave records, attendance registers, show-cause letters or disciplinary records were produced. Key allegations rested on hearsay from the Human Resource Manager, Mr. Kariuki, who was not called to testify. Section 44(4)(a) requires gross misconduct for summary dismissal, and Section 41 procedure was never followed. The Claimant's unchallenged evidence that he was verbally terminated stood unrebuted.
Whether the Claimant was underpaid contrary to the Minimum Wages Orders
Yes; the applicable minimum wage was ksh.28,427 and the pleaded underpayment of ksh.108,425.57 was allowed
RW1 admitted the minimum monthly wage for a heavy commercial driver was ksh.28,427 but claimed the Claimant had accepted ksh.22,500. The contract was not produced, and no waiver agreement was exhibited. Under Section 48 of the Labour Institutions Act, Wages Order minimums may not be varied by agreement. The pleaded computation was never challenged or faulted by the Respondent.
Whether the Claimant was entitled to compensation for unfair termination
Yes; nine months' salary awarded (ksh.255,846.87)
Having found the termination unfair and abscondment unproven, compensation under the Employment Act became an entitlement. The court considered the manner of termination and exercised discretion to award nine rather than twelve months' salary.
Whether the Respondent's Counter-Claim succeeds
No; dismissed, as the Respondent did not prove absconding of duty
The Counter-Claim sought one month's salary in lieu of notice on the premise that the Claimant deserted. Having found the Claimant was unfairly terminated and did not abscond, the Counter-Claim necessarily failed. The Respondent had also never issued a demand letter to the Claimant.
Legal principles established
#- Wages Orders constitute minimum terms of employment that cannot be varied by agreement; underpayment cannot be waived absent an agreement on waiver
- An employer alleging abscondment must make reasonable efforts to reach the employee and comply with Section 41 before summary dismissal
- Failure to comply with Sections 41 and 43(1) of the Employment Act renders a termination substantively and procedurally unfair
Court orders
#- 1.Judgment entered for the Claimant against the Respondent as follows: one month salary in lieu of notice ksh.28,427.43; underpayment per Minimum Wages Order 2013 ksh.43,223.89; underpayment per Minimum Wages Order 2015 ksh.65,201.68; nine months' salary compensation for unfair termination ksh.255,846.87; March 2016 salary ksh.28,427.43; total ksh.421,127.30
- 2.Claimant awarded costs of both the Claim and Counter-Claim
- 3.Interest at court rates on the awarded sums
- 4.Respondent to issue a Certificate of Service to the Claimant within thirty days of the judgment
- 5.Respondent's Counter-Claim for one month's salary in lieu of notice dismissed
- 6.Claim for parking fees of ksh.11,500 declined
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Employment Act, 2007 (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Mwakio v Reliable Freight Services Ltd [2022] KEELRC 496 (KLR)", Case Analysis (2022). Not stated in judgment (Memorandum of Claim dated 12th April 2018, filed 24th April 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/496/eng@2022-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.