Mbuba & another v Mwangi & another (Cause E002 & E003 of 2021 (Consolidated)) [2023] KEELRC 543 (KLR)

The court adopted the South African authority Seabo v Belgravaia Hotel on the meaning of desertion, requiring an intention not to return which the employer must demonstrate through facts such as attempts to reach the employee and show-cause notices. The respondents admitted making no effort to contact the claimants, sent no show-cause notices, and produced no CCTV footage of the alleged theft investigation. The claimants' evidence of reporting to the Labour Office was more weighty, supporting a finding of dismissal.

No CCTV footage was adduced; no witness saw the meat being stolen and there was no proof that 100kgs of meat was in the fridge. The alleged shortages were unsupported by any auditor's report or accountant's statement, and no evidence showed the 2nd claimant received direct customer payments. These evidentiary gaps meant the employer failed to discharge its burden under sections 43 and 45(2) of the Employment Act.

The respondents did nothing to invite the claimants to a disciplinary hearing or warn them of disciplinary action for absconding, and no show-cause letters were served regarding the alleged theft and clandestine dealings with customers. Section 41 requires the employer to explain the reasons for contemplated termination and to hear and consider the employee's representations before termination or summary dismissal.

Having found the dismissal unfair, the court awarded one month's salary in lieu of notice to each claimant, compensation scaled to length of service (15 days' gross pay for the 1st claimant who worked 3 months; one month's salary for the 2nd claimant who worked about 8 months), pro-rated leave, and unpaid salary for July 2019 and 15 days in August 2019, as there was no evidence these amounts were paid. General damages were dismissed as lacking merit.