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ELRCPartially AllowedMemorandum of Claim dated June 9, 2015 (Cause)· [2023] KEELRC 336 (KLR)

Muthiani v Kuber Agencies Limited (Cause 1131 of 2015) [2023] KEELRC 336 (KLR)

Employment and Labour Relations Court
9 February 2023
LNLINNET NDOLO
832 words in judgment
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The bottom line

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A Kenyan court ruled an employer cannot fire a driver for desertion without first proving it tried to reach him, awarding him compensation.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent in September 2013 as a turn boy and later elevated to driver, claimed unlawful termination of employment following a trip to Kisumu during which the Respondent's director complained about fuel consumption. He sought notice pay of Kshs. 18,000, twelve months' salary as damages (Kshs. 216,000), salary for twelve days worked in April 2015, a certificate of service and costs. The Respondent admitted the employment history but asserted that the Claimant was incompetent as a driver, was instructed to revert to the position of turn boy, declined and deserted employment. The court framed two issues: whether the Claimant made out a case of unlawful termination, and whether he was entitled to the remedies sought. Relying on its earlier decision in Ronald Nyambu Daudi v Tornado Carriers Limited, the court held that desertion is a grave administrative offence which must be proved, and the employer must show efforts to reach out to the employee. No such efforts were demonstrated. Further, the demotion from driver to turn boy was a disciplinary action not preceded by any process under section 41 of the Employment Act, and alleged incompetence should have been met with guidance and reasonable time to improve. The court found the termination unlawful and awarded four months' salary in compensation, one month's notice pay and the admitted twelve days' salary, totalling Kshs. 96,930, with interest at court rates from the date of judgment, plus a certificate of service and costs. Judgment was delivered virtually at Nairobi on February 9, 2023 by Linnet Ndolo, Judge.

Key legal issues

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01

Whether the claimant's employment was unlawfully terminated

Holding

The respondent failed to establish desertion and the demotion lacked a disciplinary process; termination was unlawful

Reasoning

The respondent asserted the claimant deserted duty, but desertion must be proved and the employer must show efforts to reach the employee. No such efforts were demonstrated. Further, the demotion from driver to turn boy was itself a disciplinary action not preceded by any section 41 disciplinary process, and incompetence should first have been addressed by pointing out shortcomings and allowing reasonable time to improve.

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02

Remedies for the unlawful termination

Holding

Four months' salary in compensation, one month's notice pay, 12 days' salary for April 2015, certificate of service and costs

Reasoning

In assessing compensation the court considered the claimant's length of service and the respondent's unlawful conduct in the termination. Notice pay was awarded, and the claim for 12 days worked in April 2015 was admitted and payable. A certificate of service and costs followed as entitlements.

p. 3

Legal principles established

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  • An employer alleging desertion must prove it and show efforts made to reach the employee before termination
  • Demotion is a disciplinary action that must be preceded by a disciplinary process under section 41
  • Incompetence must first be pointed out and the employee given reasonable time to improve before demotion or termination

Court orders

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  1. 1.Judgment for the Claimant: 4 months' salary in compensation (Kshs. 71,800)
  2. 2.1 month's salary in lieu of notice (Kshs. 17,950)
  3. 3.Salary for 12 days worked in April 2015 (Kshs. 7,180)
  4. 4.Total award of Kshs. 96,930 with interest at court rates from the date of judgment until payment in full
  5. 5.Claimant entitled to a certificate of service
  6. 6.Costs of the case to the Claimant

Authorities

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Legislation

  • Employment Actsection 41

Cases cited (2)

  • Ronald Nyambu Daudi v Tornado Carriers Limited
    [2019] eKLR
  • Kenya Science Research International Technical and Allied Workers Union v Stanley Kinyanjui & another
    Cause No 273 of 2010
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (claim for unlawful termination of employment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muthiani v Kuber Agencies Limited (Cause 1131 of 2015) [2023] KEELRC 336 (KLR)", Case Analysis (2023). Memorandum of Claim dated June 9, 2015 (Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/336/eng@2023-02-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.