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ELRCPartially AllowedNairobi ELRC Cause No. 2348 of 2017· [2023] KEELRC 2450 (KLR)

Mochama v Kenya Nut Company Limited (Cause 2348 of 2017) [2023] KEELRC 2450 (KLR)

Employment and Labour Relations Court
12 October 2023
JGJACOB GAKERI
2,524 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer cannot claim an employee deserted the job without proving it tried to get that employee back to work.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1995 and rising to senior security supervisor, alleged that he was verbally dismissed on 29th June 2015 on allegations of stealing macadamia nuts, without any notice to show cause or disciplinary hearing. He sought a declaration of unfair termination, notice pay, service pay, compensation of 12 months, and a certificate of service. The Respondent denied the dismissal, contending that the Claimant absconded duty after his arrest on 26th June 2015, and counterclaimed for three months' salary in lieu of notice and special damages of Kshs.80,000. The court framed three issues: whether the Claimant absconded or was dismissed; his entitlement to relief; and the Respondent's entitlement on the counter-claim. Relying on the distinction between desertion and unauthorised absence, and the settled requirement that an employer alleging desertion must demonstrate efforts to secure the employee's return, the court found the Respondent, having itself occasioned the Claimant's arrest, could not plead ignorance of his whereabouts and adduced no evidence of any effort to have him resume duty or of any disciplinary process. The termination was held substantively and procedurally unfair. The Claimant was awarded one month's salary in lieu of notice, compensation equivalent of six months' salary (reduced for his contribution to the termination), costs, interest, and a certificate of service. Service pay was declined for want of proof. The counter-claim was dismissed with costs. Judgment delivered virtually at Nairobi on 12th October 2023 by Dr. Jacob Gakeri, J.

Key legal issues

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01

Whether the Claimant absconded duty or was summarily dismissed

Holding

The Respondent failed to prove desertion; having occasioned the Claimant's arrest it knew his whereabouts and made no effort to have him resume duty. The termination was substantively and procedurally unfair.

Reasoning

The court distinguished desertion from unauthorised absence, noting desertion requires intention not to return. The Respondent, as complainant in the criminal case, was aware of the Claimant's whereabouts yet adduced no evidence of steps taken to secure his return to work or of any disciplinary process. Failure to comply with Section 41 procedure rendered the termination unfair both substantively and procedurally.

p. 5
02

Whether the Claimant is entitled to the reliefs sought

Holding

Partially: notice pay and 6 months' salary compensation and certificate of service awarded; service pay declined for want of proof.

Reasoning

The Respondent adduced no evidence of notice under Section 36, so one month's salary in lieu of notice was awarded. Compensation under Section 49(1)(c) was set at 6 months' salary, reflecting 20 years of service but reduced for the Claimant's contribution to the termination and failure to evidence a desire to resume work. Service pay failed for lack of proof.

p. 6
03

Whether the Respondent's counter-claim should succeed

Holding

Dismissed with costs as the Respondent failed to prove the alleged desertion.

Reasoning

Since the court found the termination unfair and the Respondent failed to prove that the Claimant absconded duty, the counter-claim founded on alleged desertion and breach of contract had no evidentiary foundation and was dismissed with costs.

p. 6

Legal principles established

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  • An employer claiming that an employee deserted duty must demonstrate efforts made towards getting the employee to resume duty, at the very least by issuing notice that termination on grounds of desertion is being considered
  • The procedure for termination of employment under Section 41 of the Employment Act is mandatory and non-compliance renders the termination procedurally unfair

Court orders

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  1. 1.Declaration that termination of the Claimant's employment was unfair
  2. 2.One month's salary in lieu of notice
  3. 3.Equivalent of 6 months' salary as compensation
  4. 4.Costs of the suit
  5. 5.Interest at court rates from date of judgment till payment in full
  6. 6.Certificate of service
  7. 7.Counter-claim dismissed with costs

Authorities

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Legislation

  • Employment Act, 2007Section 41(1)
  • Employment Act, 2007Sections 43(1), 45(2)(a), 45(4)(b), 41(2)
  • Employment Act, 2007Section 36
  • Employment Act, 2007Section 35(5)
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 51
  • Evidence ActSections 107, 108, 109
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Article 159(2)(d), Article 48

Cases cited (5)

  • James Okeyo v Maskant fiower limited
    (2015) eKLR
  • Rita Asenja Ahunguya v Jan Geu Grootenhuis
    (2020) eKLR
  • Seabolo V Belgravia Hotel
    (Supra)
  • Felistas Acheha Ikatwa vs Charles Peter Otieno
    (2018) eKLR
  • Black's Law Dictionary (10th Edition)
    2010
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Mochama v Kenya Nut Company Limited (Cause 2348 of 2017) [2023] KEELRC 2450 (KLR)", Case Analysis (2023). Nairobi ELRC Cause No. 2348 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2450/eng@2023-10-12

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