Angaluki v Aquamist Limited (Cause 2246 of 2017) [2023] KEELRC 225 (KLR)
The bottom line
#A Kenyan employer who claims an employee deserted duty must prove it in court — silence at trial cost this employer over Kshs. 75,000 plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was an employee of the Respondent
Yes - employed from 1st December, 2016 for 10 months at a monthly salary of Kshs.21,384.00
Despite the Claimant's testimony that he was employed in 2004, the Memorandum of Claim stated employment on 1st December, 2016, a date the Respondent agreed with, evidenced by the written agreement executed on 5th December, 2016. In an undefended claim the claimant must first establish the employment relationship as a preliminary issue.
Whether termination was substantively justified
No - the Respondent failed to prove the alleged desertion on a balance of probabilities
The Respondent alleged the Claimant absconded for 14 days but tendered no evidence, producing neither a notice to show cause nor a letter of termination. An employer alleging desertion must demonstrate efforts to get the employee back and issue notice that termination is being considered.
Whether the termination was procedurally fair
No - Section 41 of the Employment Act was not complied with
The Claimant testified he was never taken through a disciplinary hearing and the Respondent's documents made no reference to any disciplinary process. Even if the employee absconded, he was entitled to a fair disciplinary process, and it was the Respondent's duty to show it accorded a fair hearing.
Whether the Claimant is entitled to the reliefs sought
Partially - declaration, notice pay, 2 months' compensation, costs, interest and certificate of service granted; anticipatory earnings and leave days refused
Having found unfair termination, the court invoked Section 49(1)(c). In quantum it considered the short 8-month tenure and the warning letter of 20th June, 2017 showing the Claimant contributed to his termination, awarding the equivalent of 2 months' salary rather than 12 months.
Legal principles established
#- For a termination to pass muster, an employer must prove both a valid and fair reason and a fair procedure
- An employer alleging desertion must demonstrate efforts made to get the employee to resume duty, and at the very least issue a notice that termination for desertion is being considered
Court orders
#- 1.A declaration that termination of the Claimant's employment was unfair for non-compliance with the Employment Act
- 2.One month's salary in lieu of notice Kshs.25,233/=
- 3.Equivalent of two (2) month's salary Kshs.50,466/= as compensation under Section 49(1)(c) of the Employment Act
- 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
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007 (unfair termination claim); no constitutional provision invoked for jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Angaluki v Aquamist Limited (Cause 2246 of 2017) [2023] KEELRC 225 (KLR)", Case Analysis (2023). Memorandum of Claim dated 6th November, 2017, filed 14th November, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/225/eng@2023-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.