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ELRCPartially AllowedELRC Cause No. 1566 of 2017· [2023] KEELRC 762 (KLR)

Sitima v Jokali Handling Services Limited (Cause 1566 of 2017) [2023] KEELRC 762 (KLR)

Employment and Labour Relations Court
16 March 2023
5,065 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Claimant, employed by the Respondent from April 2015 as a general worker, alleged that on 24 December 2016 he was forced to write a letter withdrawing his workplace injury suit and was then dismissed verbally without reasons or a hearing. The Respondent contended that he deserted duty on 29 December 2016 and that his employment was never terminated. The court framed four issues: how the separation occurred, its substantive and procedural fairness, entitlement to reliefs, and costs. Relying on the principle that parties are bound by their pleadings, the court disregarded the Respondent's supplementary witness statement asserting desertion from 28 December 2016, since the statement of response admitted the Claimant worked until 24 December 2016. The purported attendance register, not properly filed and unexplained, was treated as an afterthought, and no biometric printout was produced. The Respondent therefore failed to prove desertion as the reason for separation under sections 43 and 45(2) of the Employment Act, and its claimed efforts to contact the Claimant were mere bare assertions. The termination was found substantively unfair, and procedurally unfair because no show-cause letter was issued and no disciplinary hearing held, contrary to section 41. The court awarded salary in lieu of notice (Ksh 14,460), admitted leave pay (Ksh 10,122), house allowance at 15% of salary for 21 months (Ksh 45,549) as consolidation was unproved absent itemised pay statements, and six months' compensation (Ksh 86,760) under section 49(1)(c), plus a declaration of unfair termination, a certificate of service within 30 days, interest and costs. The claim for 23 days' December salary failed, the court being persuaded on the payroll printout that the Claimant collected his December pay on 5 January 2017.

Key legal issues

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01

Whether the separation was termination on 24 December 2016 or desertion on 28 December 2016

Holding

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

Reasoning

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.

p. 7
02

Whether the termination was substantively unfair

Holding

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

Reasoning

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.

p. 8
03

Whether the termination was procedurally fair

Holding

The termination was procedurally unfair for breach of section 41 of the Employment Act

Reasoning

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.

p. 8
04

Entitlement to house allowance

Holding

House allowance awarded at 15% of monthly salary for 21 months (Ksh 45,549) as the Respondent failed to prove consolidated wages

Reasoning

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.

05

Compensation for unfair termination

Holding

Award of six months' gross salary (Ksh 86,760) under section 49 of the Employment Act

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.A declaration that the termination of the Claimant was both procedurally and substantively unfair
  2. 2.Salary in lieu of notice of Ksh 14,460
  3. 3.Pay for unused leave days of Ksh 10,122
  4. 4.Housing allowance of Ksh 45,549
  5. 5.Compensation pursuant to section 49(1)(c) of the Employment Act of Ksh 86,760 (six months' gross salary)
  6. 6.Costs of the suit to the Claimant
  7. 7.Interest on the sums awarded at court rates from the date of judgment until full payment
  8. 8.The Respondent to issue the Claimant with a certificate of service within 30 days of the judgment

Authorities

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Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 46
  • Employment Actsection 41
  • Employment Actsections 35(1) and 49(1)(a)
  • Employment Actsection 31(1) and (2)
  • Employment Actsection 47(5)
  • Employment Actsection 43
  • Employment Actsection 20
  • Employment Actsection 49(1)(c)
  • Employment Actsection 35
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (10)

  • Philip Osore Ogutu vs Michael Onyura Aringo & 2 others
    (2013) eKLR
  • Independent Electoral and Boundaries Commission and Another vs Stephen Mutinda Mule & 3 others
    (2014) eKLR
  • Adetoun Oladeji vs Nigeria Breweries PLC
    SC 91/2002
  • Richard Maingi vs Wells Fargo Limited
    2017 eKLR
  • Chispine Onguso Okinyi vs Devki Steel Mills Limited
    2018 eKLR
  • Joseph Nzioka vs Smart Coating Limited
    (2017) eKLR
  • Patrick Abuya vs Institute of Public Accountants of Kenya (ICPAK) & another
    (2015) eKLR
  • Lawi Wekesa Wasike vs Mattan Contractors Limited
    (2016) eKLR
  • Julius Kyalo Malonza vs Ruth Osolo t/a Eraeva Catering Services
    (2021) eKLR
  • Daniel Mueke vs Bhogas Auto World
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "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.