Odongo v Mars Security Guards Limited (Cause 2203 of 2017) [2023] KEELRC 1227 (KLR)
The bottom line
#The Employment Court found a security guard who stopped reporting to work had deserted his job, and his signed full-and-final settlement payment blocked all claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's employment was terminated or he deserted duty
The claimant absconded duty; his employment was not terminated by the respondent
The documentary evidence showed the claimant was given 4 days off effective 27th September 2017 with a sick sheet to 2nd October 2017, surrendered his uniform, and never reported back. The letter to the Labour Officer reporting desertion was credible. The respondent issued no termination notice or notice to show cause, and RWI confirmed the employment was not terminated. The claimant failed to discharge the statutory burden of proving an unfair termination under section 47(5) of the Employment Act.
Whether the claimant waived his right to pursue further claims
Yes; the certificate of payment dated 16th October (2015/2017) constituted full and final settlement
Applying Court of Appeal authority on discharge vouchers, the court found the claimant executed a certificate of payment and petty cash voucher without evidence of misrepresentation or incapacity, agreeing to full and final settlement of dues with no further claims. The claimant did not dispute signing the documents, so the waiver bound him and the reliefs question did not arise.
Whether the claimant is entitled to the reliefs sought
No; the claim was dismissed in its entirety
Having found desertion rather than termination, and a full and final settlement waiver, no relief (notice pay, September salary, compensation, service pay, leave, certificate of service) was available. The court also noted the claimant took 73 days leave against the 63 claimed, was an NSSF member, and never worked in October 2017.
Legal principles established
#- An employer claiming that an employee has deserted duty must demonstrate efforts made towards getting the employee to resume duty, including a notice that termination on the ground of desertion is being considered
- The burden of proving unfair termination or wrongful dismissal rests on the employee, while the burden of justifying the grounds for termination rests on the employer
- Discharge vouchers and settlement agreements are binding contracts; whether they bar further claims depends on the circumstances, including voluntariness of execution
Court orders
#- 1.The claim is dismissed
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (article 41 of the Constitution of Kenya, 2010 and the Employment Act, 2007 invoked by the parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odongo v Mars Security Guards Limited (Cause 2203 of 2017) [2023] KEELRC 1227 (KLR)", Case Analysis (2023). Cause No 2203 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1227/eng@2023-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.