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ELRCPartially AllowedCause No 2005 of 2017· [2023] KEELRC 672 (KLR)

Nyabiba v Apak Company Limited (Cause 2005 of 2017) [2023] KEELRC 672 (KLR)

Employment and Labour Relations Court
21 March 2023
JGJacob Gakeri
2,022 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who claims an employee deserted duty must prove it — otherwise the termination is unfair and compensation follows.

What this practically means

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Executive summary

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The claimant, employed by the respondent in November 2015 as a general labourer earning Kshs 15,900 per month (Kshs 530 daily), sued for unfair/unlawful dismissal and terminal dues. He alleged that on January 16, 2017 he was taken to the contractor's office, accused of underperformance and of having instructed advocates over workplace injuries, and told not to report to work again, without a warning letter or disciplinary hearing. The respondent admitted the employment but denied terminating it, alleging the claimant absconded duty from January 16, 2017. The respondent filed no witness statement and tendered no oral evidence, and did not file submissions. The court framed two issues: whether the employment was unfairly terminated or the claimant deserted duty, and entitlement to relief. Relying on authority that an employer alleging desertion must demonstrate efforts to have the employee resume duty and that fair termination requires both substantive justification and procedural fairness, the court found the respondent had adduced no evidence of desertion, of a disciplinary process, or of a notice to show cause. It held the termination substantively and procedurally unfair under section 45 of the Employment Act. Judgment was entered for the claimant with a declaration of unfair termination, one month's salary in lieu of notice (Kshs 15,900), prorated leave, compensation equivalent to three months' salary (Kshs 47,700) under section 49, costs, and interest from the date of judgment. The housing allowance claim of Kshs 31,005 was disallowed because the claimant's above-minimum daily wage was inclusive of housing allowance.

Key legal issues

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01

Whether the claimant's employment was unfairly terminated or he deserted duty

Holding

The termination was both substantively and procedurally unfair; the respondent failed to prove desertion, having adduced no evidence of steps to secure the claimant's return or of a disciplinary process.

Reasoning

Desertion is a deliberate act by the employee and the burden rests on the employer to show reasonable steps to contact the employee to resume duty, at minimum a notice that termination on grounds of desertion is being considered. The respondent admitted employment but adduced no evidence, offered no witness statement or testimony, and failed to demonstrate a disciplinary process or notice under section 41 of the Employment Act. Section 45 unfairness was therefore established on the uncontroverted evidence of the claimant.

p. 4
02

Entitlement to the reliefs sought, including housing allowance and compensation

Holding

Declaration of unfair termination, one month's pay in lieu of notice, prorated leave and the equivalent of three months' salary as compensation awarded; housing allowance refused as the wage was consolidated.

Reasoning

In assessing compensation under section 49(1)(c) subject to section 49(4), the court considered the short duration of service (about 13 months), the claimant's lack of contribution to the termination, his diligent service without prior misconduct, and absence of evidence of a wish to continue serving. Housing allowance was denied because the daily wage of Kshs 530 exceeded the minimum wage of Kshs 527.10, which was inclusive of housing allowance.

p. 5

Legal principles established

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  • An employer alleging desertion must prove the desertion and demonstrate the reasonable steps taken to get the employee to resume duty.
  • Fair termination requires both substantive justification and procedural fairness.

Court orders

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  1. 1.Declaration that termination of the claimant's employment was unfair
  2. 2.Pay in lieu of notice, Kshs 15,900
  3. 3.Untaken/unpaid leave (prorated leave for the duration served)
  4. 4.Equivalent of 3 months' salary as compensation for unfair termination, Kshs 47,700
  5. 5.Costs of the suit to the claimant
  6. 6.Interest at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Act, 2007section 45
  • Employment Actsections 49(1)(c) and 49(4)
  • Regulation of Wages Order (General) Regulations, 2015minimum daily wage
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (8)

  • Joseph Sitati Nato v Kenya Ports Authority
    (2010) eKLR
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    (2018) eKLR
  • Evans Ochieng Oluoch v Njimia Pharmaceutical Ltd
    (2016) eKLR
  • Boniface Francis Mwangi v BOM Iyego Secondary School
    (2019) eKLR
  • Simon Mbithi Mbane v Inter Security Services Ltd
    (2018) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Seabolo v Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Judith Atieno Owuor v Sameer Agriculture and Livestock Ltd
    (2020) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under the Employment Act, 2007 (claims of unfair/unlawful dismissal and terminal dues)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nyabiba v Apak Company Limited (Cause 2005 of 2017) [2023] KEELRC 672 (KLR)", Case Analysis (2023). Cause No 2005 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/672/eng@2023-03-21

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