Wesonga v Central Electrical Company Limited (Cause 1449 of 2017) [2023] KEELRC 2082 (KLR)
The bottom line
#A Kenyan employer who claims an employee deserted duty must prove they tried to trace the worker — otherwise the dismissal is unfair and compensation follows.
What this practically means
#Executive summary
#Key legal issues
#How the separation in employment occurred - unfair termination or desertion
The claimant prima facie established unfair termination; the respondent failed to prove desertion; the termination was both procedurally and substantively unfair.
The burden under section 47(5) required the claimant only to prima facie demonstrate unfair termination, shifting the evidential burden to the employer. Section 43 required the employer to prove the reason for termination. The respondent's sole witness was an operations manager with no direct knowledge of site matters; the foreman and project manager, the best witnesses on the alleged desertion, were not called, rendering the desertion evidence hearsay. Contradictory testimony on efforts to trace the claimant and a letter to the Labour Officer not copied to the claimant further undermined the defence. Procedural fairness under section 41 was absent.
Entitlement to notice pay, leave pay, service pay, house allowance and compensation
Notice pay of Kshs. 13,500, leave pay of KShs. 23,625 limited to three years, service pay of Kshs. 54,000, and compensation of KShs. 135,000 (ten months) awarded; house allowance declined.
The employment was terminable by twenty-eight days' notice under section 35 and no notice was given, so notice pay was due. Leave pay was limited by the three-year limitation period in section 90. Service pay was payable as no evidence established NSSF remittances, computed at fifteen days per year. Compensation under section 49(1)(c) was discretionary, granted at ten months considering the manner of termination, eight years of service and absence of contributory fault. House allowance failed for want of evidence.
Legal principles established
#- Section 47(5) of the Employment Act does not depart from the traditional burden of proof; the employee must prima facie demonstrate unfair termination, whereupon the evidential burden shifts to the employer to justify the termination.
- An employer alleging desertion must demonstrate that efforts were made to trace the employee and to warn that continued unauthorised absence would attract disciplinary action.
- Where the best evidence of the alleged reason for termination is within the reach of the employer and is not availed, the employer's evidence on that reason is hearsay and fails to discharge the burden under section 43.
- Where the contract does not provide a formula for service pay, courts apply the section 40 formula of fifteen days' pay for every year worked.
Court orders
#- 1.A declaration that the termination of the claimant's employment was unfair
- 2.Payment in lieu of notice, one month's salary of Kshs. 13,500
- 3.Compensation for unused leave days of KShs. 23,625 (limited to three years preceding suit)
- 4.Service pay of Kshs. 54,000 for the eight years worked
- 5.Compensation pursuant to section 49[1][c] of KShs. 135,000 (ten months' gross salary)
- 6.Interest at court rates on the sums above from the date of judgment till full payment
- 7.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment Act, 2007 (unfair termination and wrongful dismissal complaint)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wesonga v Central Electrical Company Limited (Cause 1449 of 2017) [2023] KEELRC 2082 (KLR)", Case Analysis (2023). Memorandum of Claim dated June 29, 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2082/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.