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ELRCPartially AllowedMemorandum of Claim dated 20th March 2017 (filed 1st March 2017)· [2022] KEELRC 934 (KLR)

Rahab Makena Gitonga v Apprim Consultants [2022] KEELRC 934 (KLR)

Employment and Labour Relations Court
3 February 2022
1,003 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who fired a worker by text without first trying to contact her was ordered to pay her over Kshs. 364,000 in damages.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from November 2013 as a Receptionist/Office Administrator, sued for unlawful termination of employment on 14th October 2016, effected through text messages from her supervisor and the Respondent's Director. She sought one month's salary in lieu of notice, leave pay for three years, damages of twelve months' salary, and a certificate of service. The Respondent denied sending the messages and, in the alternative, alleged the Claimant absconded duty after being paid all her dues. The court framed two issues: whether the termination was unlawful, and entitlement to remedies. It held the existence of an employment relationship was a non-issue, since an allegation of absconding presupposes employment, and the statutory duty to issue a contract lies on the employer. Relying on Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School and Ronald Nyambu Daudi v Tornado Carriers Limited, the court held that an employer alleging desertion must show efforts to reach the employee and put them on notice of contemplated termination. The Respondent made no such effort, and the Claimant had permission to attend a burial. The defence therefore collapsed; the termination was substantively and procedurally unfair. The court awarded six months' salary in compensation (Kshs. 240,000), one month's notice pay (Kshs. 40,000) and leave pay for three years (Kshs. 84,000), totalling Kshs. 364,000 with interest from the date of judgment, plus a certificate of service and costs.

Key legal issues

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01

Whether the termination of the Claimant's employment was unlawful and unfair

Holding

The Respondent failed to prove the Claimant absconded duty, having made no effort to reach out to her; the termination was substantively and procedurally unfair

Reasoning

The employer alleged the Claimant absconded, but made no effort to contact her or put her on notice that termination was contemplated. She had permission from her supervisor to attend a burial. Citing authority, desertion requires proof of outreach efforts; absent such proof, the defence collapsed and the termination was held unfair both substantively and procedurally.

p. 2
02

Whether the existence of an employment relationship was in dispute

Holding

It was a non-issue; the Respondent's plea of absconding admitted the relationship, and the statutory duty to issue a written contract lies on the employer

Reasoning

The parties' submissions raised the employment relationship, but the court held it a non-issue since the defence accused the Claimant of absconding duty, which presupposes employment. Further, under the Employment Act the duty to issue a contract rests on the employer, whose failure cannot be used to defeat the claim.

p. 2
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Entitlement to remedies

Holding

Six months' salary compensation, one month's notice pay and leave pay for three years awarded; certificate of service granted

Reasoning

Compensation was assessed at six months' salary considering length of service and the Respondent's unlawful conduct. Notice pay was awarded. In the absence of leave records to the contrary, the leave pay claim succeeded. The Claimant was also entitled to a certificate of service and costs.

p. 2

Legal principles established

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  • An employer alleging that an employee has absconded duty must show efforts made to reach out to the employee and put them on notice that termination on that ground is under consideration
  • Absconding duty is not the same as absence without leave, where the employee intends to return to work

Court orders

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  1. 1.Judgment for the Claimant: 6 months' salary in compensation (Kshs. 240,000)
  2. 2.1 month's salary in lieu of notice (Kshs. 40,000)
  3. 3.Leave pay for 3 years (Kshs. 84,000)
  4. 4.Total award of Kshs. 364,000 with interest at court rates from date of judgment until payment in full
  5. 5.Certificate of Service to be issued to the Claimant
  6. 6.Costs of the case to the Claimant

Authorities

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Legislation

  • Employment Actduty to issue contract of employment (general reference)

Cases cited (2)

  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    [2015] eKLR
  • Ronald Nyambu Daudi v Tornado Carriers Limited
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act)

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, "Rahab Makena Gitonga v Apprim Consultants [2022] KEELRC 934 (KLR)", Case Analysis (2022). Memorandum of Claim dated 20th March 2017 (filed 1st March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/934/eng@2022-02-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.