Sava Builders Limited v Isaka (Appeal E021 of 2022) [2023] KEELRC 1921 (KLR)
The bottom line
#A Kenyan court threw out a worker's unfair termination award after finding he had absconded, but made the employer share costs for keeping poor records.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent was terminated at all
No termination took place; the respondent absconded duty, so unfair termination could not arise
The respondent pleaded termination on 07.12.2019 but testified his last day was 16.12.2019, contradicting the exhibited sick-off sheet showing 3 days' sick off. The court found the account incoherent and accepted the appellant's account of absconding. The trial court erred in finding unfair termination without establishing that termination occurred.
Whether the trial court's awards should stand
The awards of compensation, notice pay, NSSF refund and leave pay were all unjustified and set aside
Since no unfair termination occurred, compensation and notice pay fall away. The NSSF refund failed because breaks in service between February 2018 and August 2019 were unexplained, and leave pay was equally unjustified. The underpayment claim lacked pleaded particulars and would be speculative.
Consequences of failure to maintain employment records
The appellant's failure to maintain complete records contributed to the dispute, reflected in the costs order
Although the appeal succeeded, the court noted the appellant failed to maintain and exhibit complete records which would have averted the dispute, and this informed the decision that each party bear its own costs in both courts.
Legal principles established
#- On a first appeal the court re-evaluates the evidence but will not disturb the trial court's conclusions unless it misdirected itself.
- A party is bound by its pleadings; inconsistent accounts of the date of separation undermine the claim.
- Special pecuniary claims such as underpayment must be pleaded with particulars and proved; otherwise awards would be speculative.
Court orders
#- 1.The trial Court's judgment and decree is set aside and substituted with an order of dismissal of the respondent's suit with orders each party to bear own costs.
- 2.Appeal is allowed but each party to bear own costs of the suit.
- On appeal from
- Magistrates' Court at Mavoko (MCELRC No. 26 of 2020)
- MCELRC No. 26 of 2020
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sava Builders Limited v Isaka (Appeal E021 of 2022) [2023] KEELRC 1921 (KLR)", Case Analysis (2023). Machakos ELRC Appeal from Mavoko MCELRC No. 26 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1921/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.