Njoli Abdi & 2 others v Chandaria Industries Limtied [2022] KEELRC 685 (KLR)
The bottom line
#A Kenyan court ruled that firing workers for theft without proof, or calling them deserters while they were in remand prison, was unfair and unlawful.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimants' termination for alleged theft and desertion was lawful and fair
The termination was unfair and unlawful; the Respondent knew the Claimants were in remand yet issued dismissal letters within days, without proof of theft or compliance with Sections 41, 43 and 45 of the Employment Act
The Respondent was aware the Claimants were in remand following their arrest on 28th May 2013, yet issued dismissal letters on 14th June 2013. No evidence was presented of items stolen, their value, or any internal disciplinary process. The Respondent also failed to prosecute the criminal case, leading to the Claimants' discharge after two years. Desertion could not stand because the Respondent made no efforts to contact employees it knew were incarcerated, and Section 41 procedure was never followed.
Whether the Claimants were entitled to the reliefs sought
Judgment was entered for the Claimants with itemized awards of notice pay, accrued suspension salary, leave, house allowance and modest compensatory damages of two months' salary each
Having found the termination unfair and unlawful, the court assessed each head: one month's salary in lieu of notice, accrued salary for the suspension period which the Respondent did not disprove, unpaid leave for 2011 to 2013, house allowance which the Respondent did not prove was included in salary, and compensatory damages equivalent to two months' salary for each Claimant, with interest and costs.
Legal principles established
#- An employer alleging desertion must demonstrate reasonable efforts to contact the employee before terminating employment
- Termination must satisfy both substantive justification and procedural fairness under Sections 41, 43 and 45 of the Employment Act
- Where an employer fails to prove the reasons for termination, the termination is deemed unfair
Court orders
#- 1.Declaration that the termination of the Claimants' employment was unfair and unlawful and judgment entered in their favour
- 2.Award to Njoli Abdi of Kshs.369,759/= (notice Kshs.14,820/=, accrued salary during suspension Kshs.177,840/=, leave Kshs.29,640/=, house allowance Kshs.117,819/=, compensatory damages Kshs.29,640/=) plus costs and interest at court rates from date of judgment till payment in full
- 3.Award to John Ondieki Onyari of Kshs.369,759/= (notice Kshs.14,820/=, accrued salary during suspension Kshs.177,840/=, leave Kshs.29,640/=, house allowance Kshs.117,819/=, compensatory damages Kshs.29,640/=) plus costs and interest at court rates
- 4.Award to Abraham Musee Olaisi of Kshs.510,527/= (notice Kshs.20,462/=, accrued salaries for 24 months Kshs.245,544/=, leave Kshs.40,924/=, house allowance Kshs.162,673/=, compensatory damages Kshs.40,929/=) plus costs and interest at court rates
- 5.A signed copy of the judgment to be availed to each party upon payment of court fees
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act (claim for unfair termination and terminal dues); judgment delivered via virtual means pursuant to Article 159(2)(d) and Article 48 of the Constitution and Section 1B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoli Abdi & 2 others v Chandaria Industries Limtied [2022] KEELRC 685 (KLR)", Case Analysis (2022). Cause No. 730 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/685/eng@2022-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.