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ELRCPartially AllowedMemorandum of Claim dated 19th June 2018· [2023] KEELRC 1807 (KLR)

Abwire v SAS Security Company Limited (Cause 1182 of 2018) [2023] KEELRC 1807 (KLR)

Employment and Labour Relations Court
27 July 2023
LNLinnet Ndolo
786 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled a worker who resigned without notice gets leave and service pay, but owes his employer one month's notice pay.

What this practically means

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Executive summary

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The Claimant, employed as a night watchman at a monthly salary of Kshs. 7,500, claimed terminal dues following his resignation on 15th February 2018: annual leave for four years, service pay, uniform refund, underpayment, and a certificate of service. The Respondent admitted employment but contested its commencement date, alleging the Claimant deserted duty from 17th January 2018 and only resurfaced to resign, and counterclaimed Kshs. 7,500 being one month's salary in lieu of notice under Section 35(1) of the Employment Act. The court framed two issues: entitlement to terminal dues and the validity of the counterclaim. It found the Respondent had equivocated between desertion and resignation, and, applying Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited and Joseph Nzioka v Smart Coatings Limited, held that an employer alleging desertion must demonstrate efforts to reach the employee; absent such proof, employment ended by resignation. Leave pay succeeded as the Respondent kept no leave records, confirmed by its Operations Manager. Service pay was awarded under Section 35(5) because the Respondent admitted non-remittance of NSSF contributions. Claims for uniform refund and underpayment were dismissed as unproved. The counterclaim succeeded since the Claimant gave no notice of resignation. Final orders: Kshs. 21,000 leave pay and Kshs. 15,000 service pay to the Claimant, Kshs. 7,500 notice pay to the Respondent, netting Kshs. 28,500 payable to the Claimant with interest at court rates from judgment, with each party bearing their own costs.

Key legal issues

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01

Mode of termination - desertion versus resignation

Holding

The employment ended by the Claimant's resignation since the Respondent failed to follow the procedure for treating the absence as desertion.

Reasoning

The Respondent equivocated between alleging desertion and admitting receipt of a resignation letter. Settled jurisprudence requires an employer alleging desertion to show efforts to contact the employee and put them on notice that termination on that ground is contemplated. There was no evidence of such compliance, so the only conclusion was that employment ended by resignation on 15th February 2018.

p. 2
02

Leave pay

Holding

Claim for leave pay succeeds; the Respondent bore the burden of producing leave records and failed.

Reasoning

The Respondent produced no records showing the Claimant proceeded on leave or was paid in lieu, a failure confirmed by its Operations Manager in testimony. Leave pay for four years was therefore allowed, awarded at Kshs. 21,000 in the final orders.

p. 2
03

Service pay

Holding

Claimant entitled to service pay under Section 35(5) of the Employment Act as no NSSF contributions were remitted.

Reasoning

The Respondent admitted it never remitted NSSF contributions for the Claimant, allegedly because he failed to provide a registration number. Under Section 35(5) of the Employment Act this entitlement to service pay was not excluded, so service pay for four years was awarded at Kshs. 15,000.

p. 3
04

Respondent's counterclaim for one month's salary in lieu of notice

Holding

Counterclaim succeeds because the Claimant resigned without giving notice.

Reasoning

Section 35(1) of the Employment Act requires one month's notice of termination by either party. The evidence showed the Claimant gave no notice before resigning, so the Respondent's counterclaim for Kshs. 7,500, being one month's salary in lieu of notice, was allowed and set off against the award.

p. 3

Legal principles established

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  • To prove desertion, an employer must demonstrate efforts made to reach the deserting employee and put them on notice that termination on that ground is under consideration.
  • Where an employer provides no leave records showing the employee proceeded on leave or was paid in lieu, a claim for leave pay succeeds.

Court orders

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  1. 1.Kshs. 21,000 in leave pay for 4 years in favour of the Claimant
  2. 2.Kshs. 15,000 in service pay for 4 years in favour of the Claimant
  3. 3.Kshs. 7,500 in notice pay in favour of the Respondent
  4. 4.Respondent to pay the Claimant the net sum of Kshs. 28,500
  5. 5.Interest at court rates from the date of judgment until payment in full
  6. 6.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 35(1)
  • Employment ActSection 35(5)

Cases cited (2)

  • Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited
    [2016] eKLR
  • Joseph Nzioka v Smart Coatings Limited
    [2017] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Employment Act claims)

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, "Abwire v SAS Security Company Limited (Cause 1182 of 2018) [2023] KEELRC 1807 (KLR)", Case Analysis (2023). Memorandum of Claim dated 19th June 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1807/eng@2023-07-27

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