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ELRCPartially AllowedNot stated in the judgment (memorandum of claim filed October 9, 2017)· [2023] KEELRC 374 (KLR)

Ogola v Mimasa Limited (Cause 2016 of 2017) [2023] KEELRC 374 (KLR)

Employment and Labour Relations Court
14 February 2023
JGJACOB GAKERI
2,450 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent from November 2014 as a welder/fitter at Kshs 19,500 per month, sued for unfair summary dismissal alleging that on February 23, 2017 his supervisor told him to go home as there was no work, with no reason given, no notice to show cause and no hearing. He sought declarations of unfair termination, notice pay, February 2017 salary, untaken leave for 2 years 3 months, twelve months' compensation totalling Kshs 316,875, interest and costs. The respondent asserted the claimant and colleagues were caught attempting to remove copper plates without authorisation at a Kenya Breweries site, fled, and were reported to police; it contended the claimant absconded to avoid criminal liability, amounting to gross misconduct under section 44(4) of the Employment Act. The respondent's witness admitted no notice to show cause was issued and no disciplinary hearing was held. The court held that an employer alleging desertion must prove efforts to secure the employee's return, and that termination requires both substantive justification and procedural fairness. Finding no evidence of desertion or fair process, it declared the termination unfair. It awarded salary for days worked in February 2017, one month's notice pay, and compensation of two months' salary considering the short service, clean record and the claimant's contribution to the separation. The leave claim was disallowed for want of particulars. Judgment was entered for the claimant with costs and interest from the date of judgment. The respondent did not file submissions.

Key legal issues

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01

Whether the claimant absconded or was unfairly dismissed

Holding

Termination was unfair; desertion was not proved and no fair procedure was followed

Reasoning

The court accepted that the events of 23 February 2017 contributed to the separation, but the respondent's own witness admitted no notice to show cause was issued and no disciplinary hearing was conducted, and there was no evidence of efforts to have the claimant resume duty. Without evidence of desertion and a fair process, termination could not stand under sections 41, 43 and 45 of the Employment Act.

p. 5
02

Entitlement to reliefs

Holding

Declaration, notice pay, February salary for days worked, two months' compensation and certificate of service awarded; leave claim disallowed

Reasoning

Having found unfair termination, the court awarded one month's notice pay under section 36, salary for days worked in February 2017, and compensation equivalent of two months' salary under sections 49(1)(c) and 49(4), considering the short service of 2 years 3 months, clean record, lack of desire to continue and the claimant's contribution to the separation. The leave claim failed for want of particulars.

p. 6

Legal principles established

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  • An employer alleging desertion must demonstrate the steps it took to ascertain the employee's whereabouts and to have the employee resume duty, failing which termination will be unfair.
  • Termination must be both substantively justified and procedurally fair.

Court orders

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  1. 1.Declaration that termination of the claimant's employment was unfair.
  2. 2.Salary for the days worked in February 2017.
  3. 3.One (1) month's salary in lieu of notice (Kshs 19,500/=).
  4. 4.Equivalent of two (2) months' salary as compensation.
  5. 5.Costs of this suit.
  6. 6.Interest at court rates from date of judgment till payment in full.

Authorities

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Legislation

  • Employment Act, 2007section 44(4)(a) and (g)
  • Employment Act, 2007sections 43 and 45
  • Employment Act, 2007section 41
  • Employment Act, 2007section 36
  • Employment Act, 2007sections 49(1)(c) and 49(4)
  • Employment Act, 2007section 51
  • Civil Procedure Rulesorder 21 rule 1
  • Civil Procedure Actsection 1B
  • Constitution of Kenya, 2010article 159(2)(d)
  • Constitution of Kenya, 2010Article 48

Cases cited (7)

  • Seabolo v Belgravia Hotel
    [1997] 6 BLLR 829 (CCMA)
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    [2018] eKLR
  • Judith Atieno Owuor v Sameer Agriculture & Livestock Ltd
    [2020] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Kenya Union of Commercial Food & Allied Workers v Meru North Farmers Sacco Ltd
  • Boniface Musyoka Kyambo v DPL Festive Ltd
    [2021] eKLR
  • Alphonse Maghanga Mwachanya v Operation 680 Ltd
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ogola v Mimasa Limited (Cause 2016 of 2017) [2023] KEELRC 374 (KLR)", Case Analysis (2023). Not stated in the judgment (memorandum of claim filed October 9, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/374/eng@2023-02-14

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