Mung'au v Brinks Security Limited (Cause 567 of 2016) [2022] KEELRC 1455 (KLR)
The bottom line
#A Kenyan employer claiming an employee deserted the job must prove it tried to contact them, or the dismissal will be unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant deserted work or was unfairly denied sick leave and terminated
The Claimant's dismissal was unfair; the Respondent failed to prove desertion as no evidence of efforts to contact the employee was adduced
The court accepted the Claimant's account that he fell ill and sought sick leave. It applied the principle that desertion must be proved by evidence of efforts to reach the employee. The Respondent produced no such evidence, and the Claimant having been denied sick leave, the dismissal was unfair.
Whether the Counterclaim was proved
The Counterclaim failed because the employer did not prove desertion
The Respondent's entitlement to one month's notice pay and the cost of unreturned items was premised on the Claimant having deserted. Since desertion was not proved, the counterclaim collapsed.
Entitlement to terminal dues
The Claimant was entitled to pay for days worked and notice pay
Having found the dismissal unfair, the court held the Claimant entitled to pay for days worked and notice for the termination following his alleged absence, awarding two months' salary as compensation.
Legal principles established
#- Desertion, like all misconduct, must be proved through evidence showing efforts to reach the employee; it is not enough for an employer to simply assert that an employee deserted duty
Court orders
#- 1.One month's salary in lieu of notice – Kshs. 10,500/-
- 2.15 days worked and not paid – Kshs. 7,250/-
- 3.2 months' salary as compensation – Kshs. 21,000/-
- 4.Costs of the suit to the Claimant
- 5.Interest on the sums in (i), (ii) and (iii) from the date of judgment till payment in full
- 6.Counterclaim dismissed with no order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair and wrongful termination claims under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mung'au v Brinks Security Limited (Cause 567 of 2016) [2022] KEELRC 1455 (KLR)", Case Analysis (2022). Memorandum of Claim dated 31st March 2016, filed 8th April 2016 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1455/eng@2022-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.