Kinyanya v Searite Holdings Limited (Cause 722 of 2017) [2023] KEELRC 986 (KLR)
The bottom line
#A Kenyan court ruled that an employer claiming an employee absconded must prove it and follow fair procedure, awarding the worker Kshs 265,650.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant absconded duty or was unfairly terminated
The claimant was unfairly terminated; the respondent failed to prove abscondment or compliance with Section 41 of the Employment Act
The evidence that the claimant retained his identification badge until the hearing cast doubt on the respondent's witnesses. The employer, having control over the employee at the material time, was required to subject him to the notification and hearing process under Section 41. No concrete evidence of abscondment or of such process was led, so the termination fell outside Section 45.
Whether the counterclaim was justified
The counterclaim was dismissed in its entirety for want of proof of causation
The respondent did not lead evidence that the losses from lost business and client deductions were directly or indirectly attributable to the claimant. Some losses occurred while the claimant was still employed, yet the respondent never surcharged him at the time, undermining its claim that he was responsible.
Entitlement to reliefs
Notice pay, six months' compensatory damages and leave pay limited to 18 months were awarded; rest days, public holidays and severance were refused
Following the unfair termination finding, the court awarded one month's notice pay and six months' salary as compensation, informed by the length of service. Leave was payable because the respondent failed to exhibit leave records under Section 74(1)(f), but was capped at 18 months by Section 28(4). Rest days, public holidays and severance claims failed for want of proof and because severance applies only to redundancy.
Legal principles established
#- An employer alleging abscondment must prove it and notify the employee of contemplated termination
- Employer bears the heaviest burden of proving that termination was fair in substance and procedure
- The employee bears the burden of proving rest days, public holidays and overtime worked
- Submissions are not evidence and cannot substitute for proof at trial
Court orders
#- 1.One month's salary in lieu of notice being the sum of Kshs 33,000.00
- 2.Compensatory damages in the sum of Kshs 198,000.00 (equivalent to 6 months of gross salary)
- 3.Unpaid leave in the sum of Kshs 34,650.00
- 4.Total award of Kshs 265,650.00
- 5.Interest on the total award at court rates from the date of judgment until payment in full
- 6.Claimant to have the costs of the Claim
- 7.Counterclaim dismissed with no orders as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinyanya v Searite Holdings Limited (Cause 722 of 2017) [2023] KEELRC 986 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/986/eng@2023-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.