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ELRCPartially AllowedCause No 1043 of 2018· [2023] KEELRC 2587 (KLR)

Odhiambo v Siri Gurdwara Ramgarhia Railway (Cause 1043 of 2018) [2023] KEELRC 2587 (KLR)

Employment and Labour Relations Court
24 October 2023
3,163 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled an employer unfairly fired a long-serving worker, awarding him compensation because it proved neither desertion nor a fair dismissal process.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 24th September 1998 as a cleaner and later as a cook and purchaser of groceries, alleged unfair termination on 1st February 2018 following an inference of price exaggeration, and sought a declaration of unfair termination, dues and compensation of Kshs.1,401,605.00, costs and a certificate of service. The Respondent denied the termination, asserting the Claimant deserted duty, and counter-claimed Kshs.2,345,880.00 as damages for conversion. The court framed two issues: whether the Claimant deserted or was unlawfully terminated, and whether he was entitled to the reliefs sought. The court found that the Respondent did not plead desertion, produced no evidence of efforts to contact the Claimant, no notice to show cause, and no minutes of any hearing; the termination letter dated 1st February 2018 was uncontested. The Respondent failed to prove both substantive justification and fair procedure under Sections 45(2) and 41 of the Employment Act. The court declared the termination unfair, awarded one month's salary in lieu of notice (Kshs.13,861.00) and the equivalent of ten months' salary (Kshs.138,610.00), plus costs and interest and a certificate of service. The overtime claim of Kshs.1,221,412.50 was declined for failure of proof, and the counter-claim was dismissed as unproven and an afterthought. Judgment delivered virtually at Nairobi on 24th October 2023 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Desertion vs unfair termination

Holding

The court found the Claimant was terminated, not a deserter; the Respondent did not plead desertion and adduced no evidence of efforts to contact the Claimant.

Reasoning

The Respondent did not plead desertion in its response; RWI's oral assertion that the Claimant absconded was unsupported. There was no notice to show cause, no invitation to a hearing, and no minutes of any committee. Following the jurisprudence on desertion, the Respondent failed to demonstrate efforts to contact the employee, and the termination letter dated 1st February 2018 was uncontested.

p. 5
02

Substantive justification for termination

Holding

The Respondent failed to prove a valid and fair reason for termination.

Reasoning

The allegations of price exaggeration and malpractice (Vegetable Account) were vague, and the Respondent's witness admitted having no evidence of the investigation or of the exaggeration of prices. The termination letter, though informal, was not disowned by the Respondent. The reasons pleaded lacked specificity and the Respondent's witnesses were silent on the alleged malpractices.

p. 5
03

Procedural fairness under Section 41

Holding

Termination was procedurally unfair; the Respondent did not issue a notice to show cause or invite the Claimant to a hearing.

Reasoning

Section 41 of the Employment Act is mandatory, as held in Pius Machafu Isindu v Lavington Security Guards Ltd. The Respondent's claim that the Claimant refused to attend a hearing was unsupported by any letter of invitation, agenda or minutes. An invitation would have informed the Claimant of his right to be accompanied by a fellow employee.

p. 5
04

Overtime claim

Holding

Claim dismissed for failure of proof.

Reasoning

RWI, the security guard, contradicted the Claimant's reporting and exit times. The Claimant admitted on re-examination that he was paid overtime for Saturdays only, yet claimed 30 days a month despite having Tuesday off and working half-day on Sunday. Under the burden-of-proof principle, he who alleges must prove; no records supported the claim.

p. 6
05

Counter-claim for Kshs.2,345,880.00

Holding

Counter-claim dismissed as unproven.

Reasoning

The Respondent adduced no evidence of when the money came into the Claimant's possession, whether it was demanded, or how the sum was computed. RWI's statement made no reference to the Claimant receiving monies. The Respondent was not engaged in commercial activity where money changed hands, rendering the claim an afterthought.

p. 7

Legal principles established

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  • An employer relying on desertion must demonstrate the efforts made to contact the employee before terminating employment.
  • Termination must rest on both substantive justification and fair procedure under Sections 45(2) and 41 of the Employment Act.

Court orders

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  1. 1.Declaration that termination of the Claimant's employment by the Respondent was unfair.
  2. 2.One month's salary in lieu of notice Kshs.13,861.00.
  3. 3.Equivalent of 10 months' salary, Kshs.138,610.00 (total Kshs.152,471.00).
  4. 4.Costs of this suit with interest at court rates from date of judgment till payment in full.
  5. 5.Certificate of service.
  6. 6.Counter-claim dismissed.

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 44 (incl. s.44(4)(a))
  • Employment Act, 2007Section 36
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 51
  • Regulation of Wages (General) OrderRule 5
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (12)

  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Joseph Sitati Nato v Kenya Ports Authority
    (2010) eKLR
  • Donald Odeke v Fidelity Security Ltd
    (2012) eKLR
  • Thomas Sila Nzivo v Bamburi Cement Ltd
    (2014) eKLR
  • Rodgers Titus Wasike v General Motors East Africa Ltd
    (2020) eKLR
  • Thomas Dzombo Kirunga v Kyrstalline Salt Ltd
    (2020)
  • Seabolo v Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Ronald Nyambu Daudi v Tornado Carriers Ltd
    (2019) eKLR
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    (2018) eKLR
  • Simon Mbithi Mbane v Inter Security Services Ltd
    (2018) eKLR
  • Joseph Nzioka v Smart Coatings Ltd
    (2017) eKLR
  • Pius Machafu Isindu v Lavington Security Guards Ltd
    (2017) eKLR
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, "Odhiambo v Siri Gurdwara Ramgarhia Railway (Cause 1043 of 2018) [2023] KEELRC 2587 (KLR)", Case Analysis (2023). Cause No 1043 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2587/eng@2023-10-24

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