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ELRCDismissedELRC Cause (Nakuru), filed 22nd December 2016· [2022] KEELRC 949 (KLR)

George Orito Kuya v Faharia Fatuma Mohamed t/a Heroes Grill [2022] KEELRC 949 (KLR)

Employment and Labour Relations Court
28 January 2022
OMOnesmus N Makau
2,776 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The court found the employee walked off the job rather than being dismissed, so his Kshs.1 million claim collapsed — except his right to a certificate of service.

What this practically means

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Executive summary

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The claimant, employed as a Chef by the respondent proprietor of Heroes Grill, sued on 22nd December 2016 seeking a declaration that his termination was unlawful and unfair, terminal benefits of Kshs.1,089,428.57 (notice pay, compensation, 95 days' leave, service gratuity, house allowance and overtime), a certificate of service, costs and interest. The respondent denied dismissing him, contending he sought two or three days' leave on 15th July 2016 to visit his ailing father and never reported back, prompting phone calls, text messages and a report to the labour office. The court framed two issues: whether the claimant was unfairly dismissed or deserted employment, and his entitlement to reliefs. Relying on Simon Mbithi Mbane v Inter Security Services and Joseph Nzioka v Smart Coatings, the court held that a defence of abscondment requires demonstrated efforts to contact the employee, which the respondent discharged through calls, messages and the labour office report. The claimant's admission that he received and eventually responded to the messages, apologising and returning the uniform on 19.10.2016, led to the finding that he voluntarily deserted his job from 18.7.2016. Consequently, no valid reason or procedure question arose and unfair termination claims failed. The leave claim failed for want of particulars; gratuity had no legal or contractual basis (following H. Young & Co v Javan Were Mbango and Bamburi Cement authorities distinguishing gratuity from severance pay); house allowance was covered in the all-inclusive salary; and the overtime claim was unsupported and unchallenged in the reply to defence. The suit was dismissed in its entirety save for the certificate of service under section 51, with each party bearing their own costs. Judgment was delivered online at Nakuru on 28th January 2022 under Covid-19 directions, the parties having waived Rule 28(3) ELRC Procedure Rules compliance.

Key legal issues

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01

Whether the claimant was unfairly dismissed or deserted employment

Holding

Claimant deserted employment; no dismissal occurred, so unfair termination claims fail

Reasoning

The respondent proved the claimant was given three days off to attend to his ailing father and failed to return. She contacted him by phone and text messages on 18.7.2016, 21.7.2016 and 8.8.2016, and reported his desertion to the labour office on 15.8.2016. The claimant admitted receiving the messages and only responded on 17.10.2016 apologising, having returned the uniform on 19.10.2016. On a balance of probability, the claimant voluntarily deserted.

p. 3
02

Whether the claimant was entitled to leave, gratuity, house allowance and overtime claims

Holding

All such claims declined for want of proof, particulars or legal basis

Reasoning

The leave claim of 95 days lacked pleaded particulars. Service gratuity has no legal or contractual basis, gratuity being distinguishable from severance pay under section 40. The salary of Kshs.18,000 was held to be all-inclusive of house allowance, with no evidence of underpayment. The overtime claim failed as the shift arrangement was not challenged in reply to defence and no evidence supported it.

p. 4
03

Entitlement to a certificate of service

Holding

Claimant entitled to a certificate of service under section 51 as he worked more than 4 consecutive weeks

Reasoning

Despite dismissal of the suit, the court found the claimant worked for more than four consecutive weeks and is therefore entitled to a certificate of service under section 51 of the Employment Act, the only relief granted.

p. 4

Legal principles established

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  • An employer relying on abscondment must demonstrate efforts to contact the employee before summary dismissal
  • Parties are bound by their pleadings and the court will not improve on pleadings to justify an award
  • Gratuity is not provided for in the Employment Act and is payable only where contract or CBA so provides

Court orders

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  1. 1.The suit is dismissed save for the prayer for Certificate of Service
  2. 2.Claimant to be issued with a certificate of service under section 51 of the Employment Act
  3. 3.Each party shall bear their own costs

Authorities

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Legislation

  • Employment Actsection 52
  • Employment Actsection 43
  • Employment Actsection 10(7)
  • Employment Actsection 43(1)
  • Employment Actsection 41
  • Employment Actsection 45
  • Employment Actsection 47(5)
  • Employment Actsection 44(4)(1)
  • Employment Actsection 51
  • Employment Actsection 40(g)
  • ELRC (Procedure) RulesRule 28(3)

Cases cited (11)

  • Kenya Union of Commercial Food and Allied Workers Vs Meru North Farmers Sacco Limited
    [2014] eKLR
  • Anthony Mkala Chitavi V Malindi Water and Sewarage Co. Limited
    [2013] eKLR
  • Elizabeth Washeke and other V Airtel (K) Limited and another
    [2013] eKLR
  • Wilson Mudogo Mulima Vs AGS Worldwide Movers (K) Limited
    [2014] eKLR
  • Simon Mbithi Mbane v Inter Security Services Limited
    [2018] eKLR
  • Joseph Nzioka v Smart Coatings Limited
    [2017] eKLR
  • H. Young & Company EA Limited vs. Javan Were Mbango
    [2016] eKLR
  • Central Bank of Kenya vs. Davies Kivieko Muteti
    [2009] eKLR
  • Bamburi Cement Ltd vs Farid Aboud Mohammed
    [2016] eKLR
  • Hema Hospital vs Wilson Makongo Marwa
    [2015] eKLR
  • Bamburi Cement Limited V William Kilonzi
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Article 162(2) Constitution)

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, "George Orito Kuya v Faharia Fatuma Mohamed t/a Heroes Grill [2022] KEELRC 949 (KLR)", Case Analysis (2022). ELRC Cause (Nakuru), filed 22nd December 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/949/eng@2022-01-28

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