Mirikau v Exon Investments Limited (Cause E002 of 2021) [2022] KEELRC 1441 (KLR)

The court accepted the Respondent's witness as credible on personal delivery of the transfer letter and noted the Claimant's own testimony that Japheth Ouma reported as a mechanic in November 2018, matching his stated replacement. The dismissal letter of December 17, 2018 citing absenteeism was stamped at the Mombasa County Labour Office. The Claimant was found not candid in his evidence, so desertion was established as a valid reason under Section 44(4)(a).

Section 41(2) required the employer to hear and consider representations before summary dismissal for misconduct. The reliance letter referred to a show cause letter that was never produced, and no 28-day notice under Section 35(1)(c) was issued nor payment in lieu. Procedural fairness was held mandatory, warranting notice pay and one month's salary as compensation given the desertion finding.

The Respondent submitted, relying on section 52 of the Work Injury Benefits Act and decisions of Makau J and Rika J, that only the Director holds original jurisdiction over work injury claims, with the court exercising appellate jurisdiction. The court was persuaded, noting also that such claims require assessment on doctors' reports, and referred the claim to the Director of WIBA.

The Claimant pleaded specific months of deductions and produced bank statements showing salary below the admitted net salary of Kshs. 25,000/-. The employer, as custodian of records under Section 74, failed to produce pay slips or Mpesa records of alleged salary advances. The burden under Section 47(5) shifted to the employer, whose failure justified an award of the deducted sum.