CALISTUS ANYWOLO M’MACHI v MOMBASA CEMENT LIMITED
The bottom line
#A Kenyan employer who claims an employee deserted duty must prove real efforts to reach the worker, or the dismissal is unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant deserted duty or was unfairly terminated
The Respondent failed on a balance of probabilities to prove desertion; termination was unfair for want of substantive justification and procedural fairness
The Respondent alleged desertion but RWI confirmed the Claimant was denied entry at the gate and that no termination letter issued. The Respondent had the Claimant's phone number and postal addresses, including the spouse's contacts, but proved no attempts to reach him, no show cause letter, no notice to the Labour Officer and no disciplinary process under section 41 of the Employment Act.
Whether the Claimant was entitled to pay in lieu of notice and compensation
Notice pay awarded under section 35 and compensation of three months' salary under section 49(1)(c) of the Employment Act
The Claimant was not accorded notice as required by section 35. For compensation, the court considered the short 11-month tenure, verbal warnings for indiscipline, and the fact that the arrest and charge, though ending in acquittal under section 210 of the Criminal Procedure Act, dented the Claimant's integrity, settling on three months' salary.
Whether the court had jurisdiction over the defamation claim and whether it was proved
The court had jurisdiction under section 12(1) of the ELRC Act but the claim failed for want of pleading and proof
The court held that section 12(1) of the Employment and Labour Relations Court Act, 2011 covers all disputes emanating from an employment relationship, including the alleged defamation. However, the elements of defamation - defamatory representation, reference to the claimant, and publication - were not pleaded or proved, and an acquittal under section 210 does not of itself signify defamation.
Legal principles established
#- An employer claiming desertion must demonstrate efforts made to get the employee to resume duty, at the very least by notice that termination on grounds of desertion is being considered
- Termination must satisfy both substantive justification and procedural fairness
Court orders
#- 1.Declaration that termination of the Claimant's employment by the Respondent was unfair
- 2.One month's salary in lieu of notice Kshs.14,728/=
- 3.Equivalent of three (3) months salary, Kshs.44,180/= (total Kshs.58,908/=)
- 4.Costs of this suit to the Claimant
- 5.Interest at court rates from the date of judgment till payment in full
- 6.Certificate of service awarded as a statutory right under section 51 of the Employment Act
- Jurisdiction invoked
- Section 12(1) of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CALISTUS ANYWOLO M’MACHI v MOMBASA CEMENT LIMITED", Case Analysis (2023). Not stated in the judgment (Memorandum of Claim filed 12th October, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/148/eng@2023-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.