Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No 2203 of 2017· [2023] KEELRC 1227 (KLR)

Odongo v Mars Security Guards Limited (Cause 2203 of 2017) [2023] KEELRC 1227 (KLR)

Employment and Labour Relations Court
25 May 2023
4,090 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

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

#
The claimant, employed by the respondent security company from July 2012 at Kshs.17,000/= per month, sued alleging unfair termination of employment, non-payment of September 2017 salary, and withholding of medical reports after he was bitten by a dog while on duty in April 2017. He sought a declaration of unfair dismissal, reinstatement, notice pay, salary arrears, 12 months' compensation, service pay, leave dues, costs, interest and a certificate of service. The respondent denied terminating him, asserting he deserted duty after being granted 4 days off on 27th September 2017 to seek medical attention, and relied on a signed certificate of payment as full and final settlement. The court framed three issues: whether the employment was terminated or the claimant absconded; whether he waived further claims; and entitlement to reliefs. On the evidence, the court found the claimant surrendered his uniform on 27th September 2017, held a 5-day sick sheet to 2nd October 2017, never reported back, and adduced no evidence of termination. Applying section 47(5) of the Employment Act, the burden of proving unfair termination lay on the claimant and was not discharged. The respondent's letter to the Labour Officer reporting desertion was accepted as credible, though the court noted the respondent also failed to follow the required steps of contacting the employee. On waiver, the claimant's signed certificate of payment and petty cash voucher constituted a binding full and final settlement with no evidence of misrepresentation or incapacity. The entire claim was dismissed with each party bearing their own costs.

Key legal issues

#
01

Whether the claimant's employment was terminated or he deserted duty

Holding

The claimant absconded duty; his employment was not terminated by the respondent

Reasoning

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.

p. 7
02

Whether the claimant waived his right to pursue further claims

Holding

Yes; the certificate of payment dated 16th October (2015/2017) constituted full and final settlement

Reasoning

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.

p. 9
03

Whether the claimant is entitled to the reliefs sought

Holding

No; the claim was dismissed in its entirety

Reasoning

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.

p. 9

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. 1.The claim is dismissed
  2. 2.Each party to bear their own costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010article 41
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Employment Act, 2007sections 41, 43, 45
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 36(6)(d)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)Section 1B

Cases cited (12)

  • Abisalom Ajusa Magomere v Kenya Nut Co. Ltd
    (2014) eKLR
  • Seabolo v Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    (2015) eKLR
  • Azmina Mohammed Akbar Khan v Victoria Furnitures Ltd
    (2018) eKLR
  • Kennedy Obala Oaga v Kenya Ports Authority
    (2018) eKLR
  • Elijah Kipkoros Tonui v Ngara Opticians t/a Bright Eyes Ltd
    (2014) eKLR
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    (2018) eKLR
  • Krystalline Salt Ltd v Kwekwe Mwakele & 67 others
    (2017) eKLR
  • Damondar Jihabhai & Co. Ltd and another v Eustace Sisal Estate Ltd
    (1967) EA 153
  • Globe Motors Inc & others v TRW Lucas Electrical Steering Ltd & others
  • Coastal Bottlers Ltd v Kimathi Mithika
    (2018) eKLR
  • Trinity Prime Investment Ltd v Leon of Kenya Insurance Co. Ltd
    (2015) eKLR
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.