Haji v Syed Hassan Zaidi t/a Imamia Electrical & Hardware (Employment and Labour Relations Appeal E022 of 2022) [2023] KEELRC 1200 (KLR)
The bottom line
#Even when an employee allegedly abandons their job, a Kenyan employer must still follow fair legal procedures before treating them as dismissed.
What this practically means
#Executive summary
#Key legal issues
#Whether termination following alleged absconding/desertion complied with the Employment Act
The respondent issued no notice to resume duty, no letter to last known address and no notice to the Labour Officer; the trial court's finding of abandonment was in error
The court held that an employer alleging desertion must still comply with Section 41(2) (hearing before termination) and, where the employee cannot be traced, demonstrate efforts to trace them and report to the Labour Officer under Section 18(4) and (5)(b). Absent such steps, the alleged abandonment lacked justification and termination was unfair.
Whether the appellant was underpaid
Partly proved; underpayment of Kshs 1,319.50 per month for six months from May 1, 2018, totaling Kshs 7,914
Applying the Regulation of Wages (General) (Amendment) Order, 2017, the driver's minimum wage from May 1, 2017 was Kshs 17,447.15, so his wage of Kshs 18,000 was not underpaid for that period. From May 1, 2018 the minimum wage rose to Kshs 19,319.50, producing an underpayment until October 30, 2018.
Whether compensation for unfair termination was due
No compensation awarded; conduct and culpability under Section 45(5)(b) taken into account
The appellant was alleged to have been found with stolen goods, and that evidence was not challenged in any material way. Having regard to the employee's conduct and culpability up to the date of termination, the court found compensation would not suffice and tabulated it at zero.
Legal principles established
#- Where an employee is alleged to have absconded duty, the employer must still ensure due process under Section 41(2) of the Employment Act before summary dismissal
- Where the employer cannot hear the employee due to absence, the employer must demonstrate efforts to trace the employee, including notice to the Labour Officer
- Procedural fairness is required even where gross misconduct warrants summary dismissal, save in exceptional circumstances demonstrated by the employer
Court orders
#- 1.Notice pay Kshs 19,319.50
- 2.Underpayments Kshs 7,914
- 3.21 leave days Kshs 12,600
- 4.Pro-rated leave days Kshs 5,907
- 5.Dues (a), (b), (c) and (d) shall be paid less Kshs 17,007 already received by the appellant
- 6.Each party shall bear own costs
- On appeal from
- Mombasa Chief Magistrate's Court (CMELRC)
- CMELRC No 729 of 2019
- Jurisdiction invoked
- First appeal against the judgment of the trial magistrate in an employment claim
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chemengich v Radar Limited (Cause 36 of 2017) [2025] KEELRC 638 (KLR)[2025] KEELRC 638 (KLR)27 Feb 2025applied
- Finsbury Trading Limited v Kinama (Appeal E002 of 2024) [2025] KEELRC 161 (KLR)[2025] KEELRC 161 (KLR)30 Jan 2025followed
Cite this brief
#Cite this brief
Caselaw, "Haji v Syed Hassan Zaidi t/a Imamia Electrical & Hardware (Employment and Labour Relations Appeal E022 of 2022) [2023] KEELRC 1200 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1200/eng@2023-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.