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ELRCPartially AllowedNot stated in judgment (Memorandum of Claim dated 12th April 2018, filed 24th April 2018)· [2022] KEELRC 496 (KLR)

Paul Mwakio v Reliable Freight Services Ltd [2022] KEELRC 496 (KLR)

Employment and Labour Relations Court
10 March 2022
3,563 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, employed in March 2014 as a Heavy Commercial Driver at a monthly salary of ksh.22,500, sued the Respondent alleging verbal termination in March 2016 without notice, hearing, or adherence to Sections 41 and 43 of the Employment Act, 2007, and claiming notice pay, underpayment under the 2013 and 2015 Minimum Wages Orders, twelve months' compensation, March 2016 salary and ksh.11,500 parking fees. The Respondent denied the claim, asserting the Claimant absconded duty in March 2016, that the agreed salary was commensurate, and counter-claimed one month's salary in lieu of notice. The court found the Respondent's evidence contradictory - its witness alternately alleged the Claimant failed to return from leave and that he vanished after refusing a summons over fuel siphoning - and proved neither version, with no attendance registers, leave records or disciplinary documents produced, and key allegations resting on hearsay from Mr. Kariuki, who was not called. Abscondment not being proved and Sections 41 and 43(1) not having been complied with, the termination was held substantively and procedurally unfair. The court awarded one month's notice pay, pleaded underpayment of ksh.108,425.57 (Wages Order minimums being non-derogable under Section 48 of the Labour Institutions Act), nine months' compensation, and March 2016 salary, totalling ksh.421,127.30. The parking fees claim failed as unproven special damage, the Counter-Claim was dismissed, and the Claimant received costs of both the claim and counter-claim with interest, plus a Certificate of Service under Section 51(1).

Key legal issues

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01

Whether the Claimant absconded duty or was unfairly terminated

Holding

The Respondent failed to prove abscondment; the termination was substantively and procedurally unfair

Reasoning

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.

p. 4
02

Whether the Claimant was underpaid contrary to the Minimum Wages Orders

Holding

Yes; the applicable minimum wage was ksh.28,427 and the pleaded underpayment of ksh.108,425.57 was allowed

Reasoning

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.

p. 5
03

Whether the Claimant was entitled to compensation for unfair termination

Holding

Yes; nine months' salary awarded (ksh.255,846.87)

Reasoning

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.

p. 5
04

Whether the Respondent's Counter-Claim succeeds

Holding

No; dismissed, as the Respondent did not prove absconding of duty

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Claimant awarded costs of both the Claim and Counter-Claim
  3. 3.Interest at court rates on the awarded sums
  4. 4.Respondent to issue a Certificate of Service to the Claimant within thirty days of the judgment
  5. 5.Respondent's Counter-Claim for one month's salary in lieu of notice dismissed
  6. 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

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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, "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.