Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedELRC Appeal (Nairobi) arising from Ruiru ELRC No. 25 of 2019· [2023] KEELRC 1310 (KLR)

Benvar Estates Limited v Tabo (Appeal E122 of 2021) [2023] KEELRC 1310 (KLR)

Employment and Labour Relations Court
3 May 2023
NMNzioki wa Makau
2,192 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer who dismisses an employee for desertion without a show-cause notice and hearing must pay full unfair termination compensation, the Employment and Labour Relations Court has held.

What this practically means

#

Executive summary

#
This is a first appeal to the Employment and Labour Relations Court at Nairobi against the judgment of Hon. J. A. Agonda PM in Ruiru ELRC No. 25 of 2019, which awarded the Respondent, a former employee of the Appellant, Kshs. 552,600/- comprising service gratuity, 12 months' compensation and one month's salary in lieu of notice for unfair termination. The Appellant contended that the Respondent deserted duty while investigations for gross misconduct were underway after his suspension, that desertion amounts to gross misconduct warranting summary dismissal under section 44(4)(a) of the Employment Act, and that the letter accepting his early retirement was a forgery. The Respondent maintained he was constructively dismissed after his early retirement letter was accepted, that he was never given a hearing or notice to show cause, and that the Suspension Notice served a year after separation was an afterthought. The appeal was disposed of by written submissions. Nzioki wa Makau J, warning himself as a first appellate court that he neither saw nor heard the witnesses, found that no cogent evidence recanted Mr. Kimani's letter accepting the retirement, that the Appellant's stamp argument failed since it produced unstamped letters itself, and that the Respondent received no hearing or notice to show cause despite the desertion assertion. The court found no error in the trial court's findings or weight attached to the evidence, upheld the decision, and dismissed the appeal with costs to the Respondent on 3rd May 2023.

Key legal issues

#
01

Whether the dismissal for desertion was fair and justified

Holding

The dismissal was unfair; no cogent evidence disproved the accepted early retirement letter and no hearing or notice to show cause preceded the dismissal

Reasoning

The court, as a first appellate court, noted it neither saw nor heard the witnesses and relied on the record. The letter by Mr. Kimani accepting early retirement was not recanted by cogent evidence; the Appellant's claim that all its letters bore a stamp was contradicted by its own unstamped letters. Despite asserting desertion, the Appellant issued no notice to show cause and gave no hearing, breaching sections 41 and 44 of the Employment Act requirements.

p. 4
02

Whether the trial court erred in awarding the reliefs (gratuity, 12 months' compensation, one month's pay in lieu of notice)

Holding

No error in the weight attached to the evidence or the findings; the awards stand

Reasoning

Having found the dismissal procedurally and substantively unfair, and the desertion claim unsubstantiated, the court found no error in the trial magistrate's assessment of reliefs. The award of Kshs. 552,600/- comprising service gratuity, compensation and one month's salary in lieu of notice was upheld and the appeal dismissed with costs.

p. 4

Legal principles established

#
  • An employer asserting desertion must issue a notice to show cause and afford the employee a hearing before summary dismissal

Court orders

#
  1. 1.The appeal is dismissed
  2. 2.The decision of the Learned Principal Magistrate is upheld
  3. 3.Costs of the appeal awarded to the Respondent

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 42
  • Employment Actsection 44(4)(a)
  • Employment Actsection 49(1)(c)
  • Employment Actsections 41(1) and (2)
  • Evidence Actsection 109

Cases cited (2)

  • David Rono Rotich v National Cement Company Ltd
    [2018] eKLR
  • Nathan Ogada Atiagaga v David Engineering Limited
    [2015] eKLR
On appeal from
Ruiru Chief Magistrate's Court (ELRC), Principal Magistrate Hon. J. A. Agonda PM
Ruiru ELRC No. 25 of 2019
Jurisdiction invoked
First appeal pursuant to Order 42 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Benvar Estates Limited v Tabo (Appeal E122 of 2021) [2023] KEELRC 1310 (KLR)", Case Analysis (2023). ELRC Appeal (Nairobi) arising from Ruiru ELRC No. 25 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1310/eng@2023-05-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.