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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 452 (KLR)

Otieno v KPP Plant Production Kenya (Cause 472 of 2015) [2023] KEELRC 452 (KLR)

Employment and Labour Relations Court
23 February 2023
2,532 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that even if an employee deserts duty, the employer must still hear them out before ending the job.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 4th January 2011 as a pre-entry keeper, sued for compensation for unlawful termination, alleging his contract was ended on or around 22nd January 2013 after he fell ill and was on bed rest, without notice or a hearing. The Respondent contended that the Claimant deserted duty, which automatically terminated the contract, and that terminal benefits had been paid. The court framed two issues: whether the contract was lawfully terminated and entitlement to reliefs. Holding that desertion is a species of gross misconduct under section 44(4) of the Employment Act, the court ruled that an employer relying on desertion must still comply with the hearing requirements of section 41(2) before closing the contract. The Respondent produced no evidence of a notice to show cause, a demand for explanation, or the alleged telephone attempts to reach the Claimant. The termination was therefore declared unfair and unlawful. On remedies, the court awarded one month's salary in lieu of notice (Kshs 8,540/=) and compensation equivalent to five months' salary (Kshs 42,700/=), taking into account the short two-year duration of employment, plus interest and costs, subject to statutory deductions. Claims for January 2013 salary, service pay and pro-rata leave were declined, the Claimant being an NSSF contributor and having been paid outstanding leave and January days worked. Judgment was delivered online with the parties' consent, waiving Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Whether termination on grounds of desertion complied with fair procedure under section 41(2) of the Employment Act

Holding

Termination was unfair and unlawful because the Respondent did not afford the Claimant a hearing or take verifiable steps to comply with section 41(2).

Reasoning

Desertion is a form of gross misconduct under section 44(4), so the employer must hear the employee's representations under section 41(2) before closing the contract. The Respondent produced no evidence of a notice to show cause, demand for explanation, or the alleged phone calls. Absent such proof, the termination was procedurally flawed and invalid under section 45(2)(c).

p. 4
02

Whether the Claimant was entitled to the reliefs sought

Holding

Only notice pay and five months' compensation were awarded; claims for January 2013 salary, service pay and pro-rata leave were declined.

Reasoning

Notice pay was due since the summary termination was invalidated, per sections 35, 36 and 49 and clause 10 of the contract. Service pay was barred by section 35(6) given NSSF membership; leave was covered by terminal dues; days worked in January 2013 had been paid. Compensation was limited to five months given the short two-year contract.

p. 5

Legal principles established

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  • Desertion of duty does not automatically terminate an employment contract; the employer must still comply with section 41(2) of the Employment Act before closing the contract.
  • Termination without affording the employee the right to be heard under section 41(2) is procedurally unfair under section 45 of the Employment Act.

Court orders

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  1. 1.Declaration that termination of the Claimant's contract of service was unlawful
  2. 2.Award of Kshs 8,540/= being salary for one month in lieu of notice
  3. 3.Award of compensation for unfair termination equivalent to five months' salary totaling Kshs 42,700/=
  4. 4.Interest on the amounts awarded at court rates
  5. 5.Costs of the case awarded to the Claimant
  6. 6.Award subject to applicable statutory deductions

Authorities

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Legislation

  • Employment Actsection 41(2)
  • Employment Actsection 44(3) and (4)
  • Employment Actsection 45(2)(c)
  • Employment Actsection 35(6)
  • Employment Actsections 35, 36 and 49
  • ELRC Procedure RulesRule 28(3)

Cases cited (7)

  • New World Stainless Steel Limited v Cosmas Mbalu Munyasya
    [2021] eKLR
  • Paul Mwakio v Reliable Freight Services Ltd
    [2022] eKLR
  • Ayub Kombe Ziro v Umoja Rubber Products Limited
    [2022] eKLR
  • Milano Electronics Limited v Dickson Nyasi Muhaso
    [2021] eKLR
  • Vincent Keya & another v D M Enterprises Limited
    (2020) eKLR
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
  • Cooperative Bank of Kenya Limited v Yator
    (Civil Appeal 87 of 2018) [2021] KECA 95 (KLR)
Jurisdiction invoked
Employment Act (references to sections 35, 36, 41, 44, 45 and 49); ELRC Procedure Rules

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, "Otieno v KPP Plant Production Kenya (Cause 472 of 2015) [2023] KEELRC 452 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/452/eng@2023-02-23

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