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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 1667 (KLR)

Mutinda v Dakawou Transport Limited (Cause E024 of 2022) [2023] KEELRC 1667 (KLR)

Employment and Labour Relations Court
6 July 2023
MMM. Mbarũ
2,240 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled an employer can't treat a worker as having quit without written notice and a hearing, awarding the driver compensation and costs.

What this practically means

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Executive summary

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The claimant, a heavy commercial driver employed from April 2013, sued after his employment ended following a routine medical check-up on 12 April 2021 that revealed high blood pressure. He said he was told verbally he was unfit, was later cleared as fit to resume, but the respondent refused to allocate him duties, terminating his employment unfairly and discriminatorily contrary to Section 5 of the Employment Act. He sought notice pay, house allowance for 96 months, leave pay for 8 years, compensation, unpaid NSSF, underpayment arrears, general damages for discrimination and costs. The respondent contended the claimant absconded after being granted time to regulate his blood pressure, effectively terminating his own employment through gross misconduct. The court framed three issues: discrimination, unfair termination, and reliefs. It held that an employee cannot be presumed to have terminated his own employment; even for gross misconduct or alleged abandonment the employer must give notice and a hearing under Sections 41, 43 and 45. The respondent's directions having been entirely verbal and undocumented, the termination was unfair. Discrimination was not made out. The court found the last wage to be Ksh.25,000 all inclusive, rejecting underpayment and house allowance claims, and awarded leave pay for two years lacking records under the employer's record-keeping duty. Judgment was entered for the claimant with a declaration of unfair termination, Ksh.200,000 compensation (eight months), Ksh.25,000 notice pay, Ksh.50,000 leave pay, and costs.

Key legal issues

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01

Unfair termination

Holding

Termination unfair for want of notice, hearing and valid grounds under Sections 41, 43 and 45 of the Employment Act

Reasoning

The employer treated the claimant as having absconded after being given time to regularise high blood pressure, but all directions were verbal and no records of process were produced. Failure to give notice and a hearing under Sections 41, 43 and 45 rendered the termination unfair.

p. 4
02

Discrimination

Holding

Not established

Reasoning

Because the claimant was deemed to have abandoned work, the respondent's inaction explained the cessation of employment; discrimination under Section 5 could not accrue on those facts.

p. 4
03

Notice pay

Holding

Due at Ksh.25,000 per employer's records

Reasoning

Due process having failed, notice pay is due; the court preferred the employer's record of the last wage over the claimant's figure.

p. 4
04

Leave pay

Holding

Ksh.50,000 for two years without leave records

Reasoning

Employer as custodian of records under Section 10(6) and (7) produced no leave records for 2020 and 2021, so pay in lieu was awarded on the last all-inclusive wage for two years.

p. 5

Legal principles established

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  • An employer cannot plead abandonment of employment without demonstrating due process - notice and hearing - before deeming employment abandoned; an employee cannot be presumed to have terminated his own employment
  • Even in serious gross misconduct, an employee is entitled to notice and a hearing

Court orders

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  1. 1.Declaration that employment terminated unfairly
  2. 2.Compensation of Ksh.200,000
  3. 3.Notice pay of Ksh.25,000
  4. 4.Leave pay of Ksh.50,000
  5. 5.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Act, 2007Section 5
  • Employment Act, 2007Sections 30 and 34
  • Employment Act, 2007Section 44(4)(a)
  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Sections 41, 43 and 45
  • Employment Act, 2007Sections 10(6) and (7)
  • Employment Act, 2007Section 28
  • Wage OrdersMinimum wages for drivers

Cases cited (2)

  • Ayub Kombe Ziro v Umoja Rubber Products Limited
    [2022] eKLR
  • Dorothy Ndung'u versus Machakos University
    [2015] eKLR
Jurisdiction invoked
First-instance employment and labour relations dispute under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mutinda v Dakawou Transport Limited (Cause E024 of 2022) [2023] KEELRC 1667 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1667/eng@2023-07-06

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