Otwere v Bedrock Holding Limited (Cause 2060 of 2017) [2022] KEELRC 1192 (KLR)
The bottom line
#A Kenyan court ruled an employer cannot claim a worker deserted the job without proving it tried to reach them and held a fair hearing, awarding the guard Kshs.104,630.23.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was terminated or absconded duty
The court found that the respondent did not avail cogent evidence that the claimant absconded duty or was fairly terminated; the termination was neither substantively nor procedurally fair
The court adopted the settled position that an employer alleging desertion must demonstrate efforts to get the employee back to work and issue a notice to show cause. The claimant's testimony that he reported to the office on July 28, 2017 and was told to stay home by his supervisor was not controverted. The respondent's own witness confirmed that deserting employees were never subjected to disciplinary hearings, defeating any claim of procedural fairness.
Entitlement to one month's salary in lieu of notice
Awarded as claimed because the respondent did not give notice of termination, justified under section 36 of the Employment Act
Since no notice of termination was issued to the claimant, the statutory protection under section 36 of the Employment Act entitled him to one month's salary in lieu of notice, which the court awarded as prayed.
Entitlement to house allowance
Awarded at Kshs.33,500.415; house allowance is a statutory right and the consolidated salary clause was of no moment given underpayment
Section 31 of the Employment Act obliges the employer to provide housing or pay housing allowance. RW1's admission that he was unaware the minimum wage was exclusive of house allowance confirmed non-payment. The fact that the contract stated salary was consolidated did not assist a respondent that was underpaying the claimant, the only allowance factored in being overtime for 12-hour shifts.
Underpayment claim
Awarded at Kshs.33,336.10; it was not in dispute that the claimant was paid below the statutory minimum wage for a watchman under the Regulation of Wages (General)(Amendment) Order, 2015
The applicable Wages Order fixed minimum pay for a day watchman at Kshs.10,954.70 and a night watchman at Kshs.12,221.10, exclusive of house allowance, effective May 2015. RW1 admitted that paying Kshs.10,050 amounted to underpayment, entitling the claimant to the difference.
Compensation for unfair termination under section 49(1)(c)
The court awarded the equivalent of two months' salary (Kshs.25,195.81) rather than the 12 months sought, having regard to the short employment period and the absence of an appeal
In compliance with section 49(4) of the Employment Act, the court took into account that the claimant served only about 1 year and 9 months and did not appeal the termination, and was satisfied that two months' salary was a fair equivalent.
Annual leave claim
Declined for lack of evidence
The claimant led no evidence on the annual leave claim; it was neither pleaded in the witness statement nor supported by oral testimony, so the prayer failed.
Legal principles established
#- An employer claiming that an employee has deserted duty must demonstrate efforts made towards getting the employee to resume duty, at the very least by issuing a notice that termination on the ground of desertion is being considered
- Even where an employee has absconded, the employee remains entitled to a fair disciplinary process under section 41 of the Employment Act before termination
- A termination of employment must be both substantively justifiable and procedurally fair to pass muster
- An employee is entitled to at least 15% of basic pay as housing allowance, which is a statutory right
Court orders
#- 1.Judgment is entered for the claimant against the respondent for the sum of Kshs.104,630.23
- 2.Award of one month salary in lieu of notice of Kshs.12,597.905 as claimed
- 3.Award of house allowance of Kshs.33,500.415
- 4.Award of Kshs.33,336.10 for underpayment
- 5.Award of the equivalent of two months' salary, Kshs.25,195.81, as compensation for unfair termination
- 6.Costs of the suit awarded to the claimant
- 7.Interest shall accrue at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over a claim of unfair termination and non-payment of terminal dues (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngila v Kenya Breweries Ltd (Employment and Labour Relations Cause E775 of 2022) [2025] KEELRC 455 (KLR)[2025] KEELRC 455 (KLR)18 Feb 2025
- Ngila v Kenya Breweries Ltd (Employment and Labour Relations Cause E775 of 2022) [2025] KEELRC 455 (KLR)[2025] KEELRC 455 (KLR)18 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Otwere v Bedrock Holding Limited (Cause 2060 of 2017) [2022] KEELRC 1192 (KLR)", Case Analysis (2022). Cause No. 2060 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1192/eng@2022-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.