Sitima v Jokali Handling Services Limited (Cause 1566 of 2017) [2023] KEELRC 762 (KLR)
The bottom line
#A Kenyan employer who claims an employee deserted duty must prove it failed to reach the employee and held a fair hearing, or the dismissal is unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the separation was termination on 24 December 2016 or desertion on 28 December 2016
The separation occurred on 24 December 2016 by termination as pleaded by the Claimant and admitted in the Respondent's own pleadings; the supplementary witness statement asserting desertion was disregarded as contrary to pleadings and unsupported by properly filed evidence
The Respondent's statement of response pleaded that the Claimant worked until 24 December 2016 and was never amended. Its supplementary statement asserting work to 28 December 2016 was at variance with the pleadings and was therefore disregarded. The purported attendance register was not filed under any list of documents and the explanation for its late surfacing was unconvincing; no biometric printout was produced. The court concluded the Respondent failed to prove desertion as the reason for separation.
Whether the termination was substantively unfair
The termination was substantively unfair; the Respondent failed to prove a valid and fair reason under sections 43 and 45(2) of the Employment Act
Section 43 obliged the Respondent to prove the reason for dismissal. Its contradictory position on the date and manner of separation, the unfiled register treated as an afterthought, and bare uncorroborated claims of attempts to contact the Claimant meant the alleged desertion was not proved. A dismissal for desertion requires failed reasonable attempts to contact the employee and a show-cause process; none was demonstrated.
Whether the termination was procedurally fair
The termination was procedurally unfair for breach of section 41 of the Employment Act
Section 41 mandatorily requires that an employee be informed of the grounds for contemplated termination, given adequate time to prepare, heard on the grounds, and that the employer consider the representations. The Respondent's witness admitted no show-cause letter was issued and no disciplinary hearing was conducted. Deviation from the procedure renders a termination unfair even if substantively justified.
Entitlement to house allowance
House allowance awarded at 15% of monthly salary for 21 months (Ksh 45,549) as the Respondent failed to prove consolidated wages
Section 31 of the Employment Act obliges employers to provide housing or pay a sufficient rent sum, unless the contract consolidates a housing element or a CBA covers it. The Respondent asserted a consolidated salary but produced no itemised pay statement as required by section 20. The assertion of consolidation was therefore rejected as baseless and the unrebutted claim allowed at 15% of the monthly salary.
Compensation for unfair termination
Award of six months' gross salary (Ksh 86,760) under section 49 of the Employment Act
Section 49 empowers the court to award compensatory relief having regard to the circumstances of each case. The court considered the procedural breaches, the absence of substantive justification, the apparently retaliatory nature of the termination following the workplace injury suit, and the length of the Claimant's employment, concluding six months' gross salary was appropriate.
Legal principles established
#- Parties are bound by their pleadings and evidence at variance with pleadings must be disregarded
- An employer alleging desertion must prove reasonable attempts to contact the employee and afford a disciplinary process before dismissal
- An employer asserting consolidated wages inclusive of house allowance must prove it, absent itemised pay statements
Court orders
#- 1.A declaration that the termination of the Claimant was both procedurally and substantively unfair
- 2.Salary in lieu of notice of Ksh 14,460
- 3.Pay for unused leave days of Ksh 10,122
- 4.Housing allowance of Ksh 45,549
- 5.Compensation pursuant to section 49(1)(c) of the Employment Act of Ksh 86,760 (six months' gross salary)
- 6.Costs of the suit to the Claimant
- 7.Interest on the sums awarded at court rates from the date of judgment until full payment
- 8.The Respondent to issue the Claimant with a certificate of service within 30 days of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Maina v Benisa Limited (Appeal E163 of 2021) [2024] KEELRC 2398 (KLR)[2024] KEELRC 2398 (KLR)30 Sept 2024
- Mutemi v Gratom Babz Services Limited (Cause 914 of 2017) [2024] KEELRC 1891 (KLR)[2024] KEELRC 1891 (KLR)24 Jul 2024followed
- Nzioki v Gratom Babz Services Limited (Cause 915 of 2017) [2024] KEELRC 1976 (KLR)[2024] KEELRC 1976 (KLR)24 Jul 2024
- Nzioki v Gratom Babz Services Limited (Cause 915 of 2017) [2024] KEELRC 1976 (KLR)[2024] KEELRC 1976 (KLR)24 Jul 2024followed
Cite this brief
#Cite this brief
Caselaw, "Sitima v Jokali Handling Services Limited (Cause 1566 of 2017) [2023] KEELRC 762 (KLR)", Case Analysis (2023). ELRC Cause No. 1566 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/762/eng@2023-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.