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ELRCDismissedAppeal No E001 of 2023· [2023] KEELRC 2371 (KLR)

Aricha v Chief Officer Ministry of Public Health and Sanitation Tukana County & 2 others (Appeal E001 of 2023) [2023] KEELRC 2371 (KLR)

Employment and Labour Relations Court
28 September 2023
MOM. Onyango
2,144 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan nurse who stopped going to work and ignored his employer's calls lost his appeal claiming Kshs 1.3 million in withheld salary.

What this practically means

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Executive summary

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This was an appeal to the Employment and Labour Relations Court at Kitale against the decision of a Principal Magistrate delivered on 27th July 2022, dismissing a claimant's suit for withheld salary and dues of Kshs 1,298,454. The Appellant, a Kenya Registered Community Nurse posted to Lochor-Alomal Dispensary in September 2016, claimed his salary was maliciously and unprocedurally withheld from February 2017, and that the disciplinary process was flawed and he was condemned unheard. The Respondents asserted he absconded duty from December 2016, ignored show cause letters and disciplinary summons, and abandoned the motorbike provided for transport. The Appellant condensed his appeal into three issues: whether he absconded duty, whether the disciplinary process was procedural, and whether his salary was justifiably withheld. The court, applying the settled duty of a first appellate court to re-evaluate the evidence and reach its own conclusions, found that the trial court's findings that the Appellant absconded duty without justifiable cause and cut links with the Respondents were supported by the evidence, including the Appellant's own admissions that he informally left employment in April 2018 and relocated to Kisii. The excuse of inadequate transport was rebutted by evidence of the motorbike provided. Accordingly, the court found no merit in the appeal and dismissed it with costs to the Respondents, affirming the trial court's judgment in its entirety.

Key legal issues

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01

Whether the Appellant absconded duty

Holding

The court found the Appellant absconded duty without justifiable cause, supported by his own admissions and testimony of DW2

Reasoning

The court reviewed the Appellant's pleadings admitting he 'informally left employment in April 2018', testimony that he was provided with a motorbike he abandoned, and his admission of relocating to Kisii and ignoring calls. The trial court's finding was held to be supported by the record, so the appeal on this issue failed.

p. 5
02

Whether the disciplinary process was procedural

Holding

The court found the finding that the Appellant cut links and could not be traced for the disciplinary hearing was supported by evidence

Reasoning

Evidence was that show cause letters and summons could not be served as the Appellant ignored phone calls and cut links with the office; the notice at page 83 of the Record of Appeal was received and signed for by the Appellant on 12th March 2018. The Appellant's conduct precluded any claim of being condemned unheard.

p. 6
03

Whether the withholding of salary was justified

Holding

Withholding was justified because the Appellant absconded duty and was subsequently unable to participate in the disciplinary process through his own conduct

Reasoning

Having found desertion of duty without justifiable cause and failure to respond to show cause letters and disciplinary summons, the court held the trial court correctly found the claim unproved. The transport-facilitation excuse was rebutted by evidence of the provided motorbike.

p. 6

Legal principles established

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  • In a first appeal, the appellate court must re-evaluate the evidence before the trial court and arrive at its own independent judgment
  • Findings of fact by a trial court will stand where they are supported by the evidence on record

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the Respondents

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 44(4)(a)
  • Constitution of KenyaArticles 41 and 47

Cases cited (8)

  • Richard Kiplimo Koech v Yako Supermarket Ltd
    [2005] eKLR
  • Kenya Revenue Authority v Menginya Salim Murgani
    [2010] eKLR
  • Naftali Mogaka Nyaboga v Kisii County Government & Another
    [2022] eKLR
  • Judith Atieno Awuor v Sameer Agricultural and Livestock Limited
    [2020] eKLR
  • Justus Kyalo Malonza v Ruth Osolo T/A Evaeva Catering Services
  • Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others
    [2014] eKLR
  • Raila Amollo Odinga & Another v Independent Electoral and Boundaries Commission & Another
  • Selle & Another v Associated Motorboat Co. Ltd & Others
On appeal from
Principal Magistrate's Court
not stated
Jurisdiction invoked
First appellate jurisdiction over the trial court's decision (re-evaluation of evidence in a first appeal)

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, "Aricha v Chief Officer Ministry of Public Health and Sanitation Tukana County & 2 others (Appeal E001 of 2023) [2023] KEELRC 2371 (KLR)", Case Analysis (2023). Appeal No E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2371/eng@2023-09-28

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