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ELRCDismissedNot stated in the judgment· [2023] KEELRC 541 (KLR)

Kamotho v Njuca Consolidaed Ltd (Employment and Labour Relations Appeal E005 of 2022) [2023] KEELRC 541 (KLR)

Employment and Labour Relations Court
6 March 2023
OMOnesmus N Makau
1,896 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employee who disappeared from work for over a year after arrest was held to have abandoned the job, not been unfairly dismissed.

What this practically means

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Executive summary

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The appellant, who had claimed Kshs 87,510 for unfair termination of employment on January 31, 2018, lost at the trial court (Hon E M Nyagah), which found he absconded work after his arrest and arraignment on a criminal charge, and he appealed to the ELRC at Nyeri. He argued the dismissal was against the weight of evidence, that the trial court failed to consider his evidence and submissions, imposed a high burden of proof, and wrongly found summary dismissal justified; he sought judgment as prayed, with costs. The respondent maintained the appellant absconded, justifying summary dismissal under section 44(4) of the Employment Act, and that the appellant failed to prove he ever reported back. Makau J framed three issues: whether the appellant was dismissed or absconded; if dismissed, whether the reason was valid and procedure fair; and entitlement to relief. The court restated the first-appeal duty to re-evaluate evidence without interfering with sound findings of fact, and applied section 47(5) of the Employment Act placing the burden of proving unfair termination on the employee. On the facts, the appellant remained in custody 21 days without raising bail, never reported back after release, and offered no corroboration of being barred at the gate. The court held his over-year absence without permission amounted to desertion, engaging section 44(4)(f). Unfair termination therefore did not arise, the monetary claims were unsubstantiated, and the appeal was dismissed with costs, affirming the trial court's judgment.

Key legal issues

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01

Whether the appellant was dismissed or absconded

Holding

The appellant absconded; he deserted his employment voluntarily and without notice, and the respondent never dismissed him

Reasoning

The appellant was arrested at work on 31 January 2018, charged on 1 February 2018, and remained in custody until 21 February 2018 without raising bail. He never reported back after release, waiting until after his discharge on 20 March 2019. No evidence corroborated his claim of being barred entry at the gate. His absence for over a year without permission amounted to desertion.

p. 4
02

Whether the termination, if any, was unfair

Holding

The issue of unfair termination does not arise because the appellant absconded rather than being dismissed

Reasoning

Having found desertion rather than dismissal, the statutory protections against unfair termination under sections 45 and 49 of the Employment Act are not engaged. An employee cannot benefit from his own fault by claiming damages for termination he brought about through his own absence.

p. 4
03

Whether the trial court erred in its evidential findings

Holding

No; the judgment was grounded on the law and evidence, and the appellate court found no misapprehension of evidence or wrong principle

Reasoning

The appellant's assertion that he reported back after acquittal was uncorroborated by witnesses or documents. DW1's evidence on attempts to reach the appellant did not displace the objective facts of prolonged absence. The trial magistrate's finding that the appellant never reported back was therefore sound.

p. 4

Legal principles established

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  • On a first appeal, the court re-evaluates the evidence but does not interfere with findings of fact unless they are based on no evidence, misapprehension of evidence, or wrong principles
  • The burden of proving unfair termination lies with the employee
  • An employee who fails to secure his liberty within 14 days of arrest for a cognizable offence punishable by imprisonment may be summarily dismissed under section 44(4)(f) of the Employment Act

Court orders

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  1. 1.The appeal is dismissed with costs
On appeal from
Magistrates' Court (ELRC subordinate court)
Not stated
Jurisdiction invoked
First appeal from the trial court (Employment and Labour Relations Court appellate jurisdiction over subordinate court employment claims)

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, "Kamotho v Njuca Consolidaed Ltd (Employment and Labour Relations Appeal E005 of 2022) [2023] KEELRC 541 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/541/eng@2023-03-06

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