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ELRCPartially AllowedNot stated in the judgment as provided· [2023] KEELRC 1700 (KLR)

Pamba v Texas Alarms (K) Limited (Cause 2034 of 2017) [2023] KEELRC 1700 (KLR)

Employment and Labour Relations Court
10 July 2023
3,536 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan employer that dismisses a worker for absconding must still prove desertion and follow fair procedure, or pay for unfair termination.

What this practically means

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Executive summary

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The Claimant, employed on 29th November 2014 as a night guard, sued alleging unfair termination and non-payment of terminal dues, claiming he was suspended on 4th May 2016 and dismissed on 25th May 2016 without reason, notice to show cause or hearing. The Respondent admitted the employment but contended the Claimant absconded duty from 3rd May 2016, that no dismissal occurred, and that only Kshs.16,310/= was owed. The Claimant testified through his son; the Respondent's evidence was found to be largely hearsay, internally inconsistent, and without documentary support for alleged calls to the absent employee. The court framed two issues: whether the Claimant deserted the workplace or was unlawfully terminated, and entitlement to reliefs. Holding that desertion requires wilful and unjustified abandonment with intention not to return, the court found the Respondent failed to prove desertion on a balance of probabilities and took no reasonable steps to ascertain the Claimant's whereabouts or afford him a disciplinary hearing under Section 41 of the Employment Act, 2007. Termination was held substantively and procedurally unfair. On reliefs, the court awarded one month's pay in lieu of notice, pro rata leave, actual uniform refund, salary underpayment of Kshs.89,199.20 assessed against prescribed minimum wage orders, service pay of Kshs.7,139.00, two months' salary (Kshs.30,492.8) as compensation having found the Claimant significantly contributed to the termination, costs, a certificate of service, and interest. Claims for suspension salary, public holidays, off-days, house allowance and overtime were declined for want of particulars or because the signed contract covered them.

Key legal issues

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01

Whether the Claimant deserted the workplace or was unlawfully terminated

Holding

The Respondent failed to prove desertion on a balance of probabilities; termination was substantively and procedurally unfair

Reasoning

Desertion requires wilful and unjustified abandonment with intention not to return. The Respondent tendered no evidence of steps taken to ascertain why the Claimant was not reporting to work, issued no notice to show cause, and conducted no disciplinary hearing. The sole reason in the dismissal letter (absconding) was unproven, and Section 41 procedural requirements were not met.

p. 6
02

Procedural fairness under Section 41 of the Employment Act

Holding

Respondent adduced no evidence of compliance with Section 41

Reasoning

No notice to show cause was issued and no hearing was conducted, even on the Respondent's own testimony. The Respondent's witnesses' accounts were hearsay and inconsistent, and no evidence of attempted contact with the absconding employee was produced.

p. 6
03

Entitlement to reliefs including underpayment and compensation

Holding

Notice pay, pro rata leave, actual uniform refund, underpayment of Kshs.89,199.20, service pay, 2 months' compensation and certificate of service awarded; other heads declined for want of particulars or contract terms

Reasoning

The court awarded heads proved or inferable from the record, applying minimum wage orders to find underpayment, and declined claims lacking particulars. Compensation was reduced to two months because the Claimant significantly contributed to the termination and served a fairly short duration.

p. 8

Legal principles established

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  • Termination of employment must be both substantively justifiable and procedurally fair
  • Even an employee who absconds duty is entitled to a fair disciplinary process under Section 41 of the Employment Act
  • A signed agreement binds the signatory regardless of whether it was read, absent fraud

Court orders

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  1. 1.Declaration that termination of the Claimant's employment was unfair
  2. 2.One month's salary in lieu of notice
  3. 3.Pro rata leave for the duration served
  4. 4.Actual amount deducted for uniform
  5. 5.Salary underpayment of Kshs.89,199.20
  6. 6.Service pay of Kshs.7,139.00
  7. 7.Equivalent of 2 months' salary (Kshs.30,492.8) by way of compensation
  8. 8.Costs of the suit
  9. 9.Certificate of service
  10. 10.Interest at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Sections 35, 35(5), 43, 45, 47(5), 49(1)(c), 51
  • Employment Act, 2007Section 44(3) and (4)
  • Regulation of Wages (General) (Amendment) Order, 2013Minimum daily rate for a night guard
  • Regulation of Wages (General) (Amendment) Order, 2015Minimum daily rate
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Articles 159(2)(d) and 48

Cases cited (13)

  • David Situma Muyoi v Texas Alarms (K) Ltd
  • Fancy Jeruto Cherop & Nancy Jepkemoi Kiyai v Hotel Cathy Ltd
    (2018) eKLR
  • Standard Group Ltd v Jenny Luesby
    (2018) eKLR
  • Jawadu Hamad Omar v East Africa Sea Food Ltd
  • John Kebaso Mose v Uchumi Supermarket
  • Seabolo v Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    (2018) eKLR
  • Judith Atieno Owuor v Sameer Agriculture and Livestock Ltd
    (2020) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Naima Khamis v Oxford University Press (EA) Ltd
    (2017) eKLR
  • L'Estrange v Graucob
    (1934) 2 KB 394
  • Parker v South Eastern Railway Co. Ltd
    (1877) 2 C.P.D 416
  • Domandar Jihabhai & Co. Ltd and another v Eustace Sisal Estates Ltd
    (1967) EA 153
Jurisdiction invoked
First-instance employment claim under the Employment Act, 2007; virtual delivery guided by Articles 159(2)(d) and 48 of the Constitution and Section 1B of the Civil Procedure Act

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, "Pamba v Texas Alarms (K) Limited (Cause 2034 of 2017) [2023] KEELRC 1700 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1700/eng@2023-07-10

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