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ELRCDismissedELRC Cause (Nairobi), Memorandum of Claim filed September 25, 2017· [2023] KEELRC 1745 (KLR)

Osebe v Manpower Networks Limited (Cause 1901 of 2017) [2023] KEELRC 1745 (KLR)

Employment and Labour Relations Court
11 July 2023
JGJacob Gakeri
2,971 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The court found the dismissal unfair but still dismissed the claim because the employee had signed a settlement form waiving further claims.

What this practically means

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Executive summary

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The Claimant, employed through the Respondent (a labour supplier) and seconded to Bamburi Cement from July 2012, alleged that on returning from leave on September 27, 2016 he was turned away and his employment wrongfully terminated without notice or reason. He sought notice pay, house allowance, September 2016 salary, offi-days pay, holiday pay, damages for wrongful dismissal, a certificate of service and costs. The Respondent denied the unfair termination, asserting the Claimant was on fixed-term contracts, deserted duty, expressed disinterest in continuing, and cleared his dues on October 10, 2016. The court framed two issues: whether the termination was unfair and whether the Claimant was entitled to relief or had waived further claims. On the first, applying the desertion jurisprudence (Seabolo, Felistas Acheha Ikatwa, Judith Atieno Owuor), the court held the Respondent failed to prove desertion or a fair process: it tendered no verifiable evidence of steps taken to secure the Claimant's resumption of work and accorded him no Section 41 disciplinary hearing. On the second issue, however, the court found the Claimant had signed a terminal dues form and Disclaimer Form on October 10, 2016, acknowledging receipt of Kshs 11,606/= and confirming he had no further claims; following Coastal Bottlers v Kimathi Mithika and Trinity Prime Investment, and the principle that signature prima facie means acceptance (L'Estrange v Graucob), the court found a voluntary waiver. The court also noted the Claimant's conduct - accepting dues before his contract lapsed and waiting seven months to complain - was atypical of abrupt termination. The suit was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Claimant deserted duty or his employment was unfairly terminated

Holding

The Respondent failed to demonstrate desertion or a fair termination; it tendered no verifiable evidence of steps taken to secure resumption of work and accorded no disciplinary process under Section 41 of the Employment Act

Reasoning

The court defined desertion as wilful and unjustified abandonment of duties, distinguishing it from absence without leave by the intention not to return. The Respondent's witness had no evidence of the alleged calls to the Claimant and no evidence of steps taken to close the employment issue. The settled position requires the employer to show efforts to get the employee to resume duty and to issue notice before terminating for desertion, and to afford a fair hearing under Section 41. None of these requirements was met, so the termination was neither substantively justified nor procedurally fair.

p. 5
02

Whether the Claimant waived his right to pursue further claims by signing the terminal dues form and Disclaimer Form

Holding

The Claimant waived his right to further claims; the documents showed a mutual separation with no outstanding dues and there was no misrepresentation, duress or undue influence

Reasoning

Applying the Court of Appeal principles in Coastal Bottlers v Kimathi Mithika and Trinity Prime Investment, the court examined the import of the discharge/terminal dues document and whether it was voluntarily executed. The Claimant admitted signing both documents and receiving Kshs 11,606/=, did not question their veracity, and his conduct - waiting almost seven months before raising any complaint - was atypical of an abruptly terminated employee. Signature prima facie means acceptance (L'Estrange v Graucob). The court therefore found a waiver of further claims.

p. 6

Legal principles established

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  • An employer claiming that an employee has deserted duty must demonstrate the reasonable steps it took to reach the employee to resume duty and subject him or her to a disciplinary process
  • A settlement agreement or discharge voucher voluntarily executed bars further claims depending on the circumstances of each case
  • At common law, signature prima facie means acceptance

Court orders

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  1. 1.The suit is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment ActSection 45(2)
  • Employment ActSection 41
  • Employment ActSection 31
  • Employment ActSection 10(3)(a)(i)
  • Employment Act, 2007Section 44(4)(a)
  • Evidence ActSection 107(1)
  • Regulation of Wages (Protective Security Services) Order, 1998Regulation 5
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (20)

  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Godfrey Anjere V Unique Suppliers Ltd
    (2013) eKLR
  • William Gituma Gateere v RAA Ltd
    (2020) eKLR
  • James Nyaboga Nyabonda V Menengai Oil Refineries Ltd
    (2021) eKLR
  • Andrew Waithaka Kiragu v Grain Pro Kenya Inc. Ltd
    (2017) eKLR
  • Joseph Njoroge Kiama v Summer Ltd
    (2014) eKLR
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    (2017) eKLR
  • Jennifer Nyambura Kamau V Humphrey Mbaka Nandi
    (2013)
  • Patrick Lumumba Kimuyu V Prime Fuels (K) Ltd
  • Rogoli Ole Manadiegi V General Cargo Services Ltd
    (2016) eKLR
  • Seabolo v Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Felistas Acheha Ikatwa V Charles Peter Otieno
    (2018) eKLR
  • Simon Mbithi Mbane V Inter Security Services Ltd
    (2018) eKLR
  • Joseph Nzioka V Smart Coatings Ltd
    (2017) eKLR
  • Boniface Francis Mwangi V B.O.M Iyego Secondary School
    (2019) eKLR
  • Judith Atieno Owuor V Sameer Agriculture & Livestock Ltd
  • Coastal Bottlers Co Ltd v Kimathi Mithika
    (2018) eKLR
  • Trinity Prime Investment Ltd V Lion of Kenya Insurance Co Ltd
    (2015) eKLR
  • Damondar Jihabhai & Co Ltd and another V Eustace Sisal Estates Ltd
    (1967) EA 153
  • L'Estrange V Graucob
    (1934) 2 KB 394
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "Osebe v Manpower Networks Limited (Cause 1901 of 2017) [2023] KEELRC 1745 (KLR)", Case Analysis (2023). ELRC Cause (Nairobi), Memorandum of Claim filed September 25, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1745/eng@2023-07-11

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