Otieno v KPP Plant Production Kenya (Cause 472 of 2015) [2023] KEELRC 452 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether termination on grounds of desertion complied with fair procedure under section 41(2) of the Employment Act
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).
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).
Whether the Claimant was entitled to the reliefs sought
Only notice pay and five months' compensation were awarded; claims for January 2013 salary, service pay and pro-rata leave were declined.
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.
Legal principles established
#- 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
#- 1.Declaration that termination of the Claimant's contract of service was unlawful
- 2.Award of Kshs 8,540/= being salary for one month in lieu of notice
- 3.Award of compensation for unfair termination equivalent to five months' salary totaling Kshs 42,700/=
- 4.Interest on the amounts awarded at court rates
- 5.Costs of the case awarded to the Claimant
- 6.Award subject to applicable statutory deductions
- Jurisdiction invoked
- Employment Act (references to sections 35, 36, 41, 44, 45 and 49); ELRC Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.