Sauti ya Rehema Radio & Television Network Ltd v Ephraim Oduor Ochieng (Appeal E029 of 2023) [2023] KEELRC 2788 (KLR)
The bottom line
#A Kenyan radio station that claimed its employee deserted lost its appeal because it never issued a show-cause notice or tried to trace him before treating him as dismissed.
What this practically means
#Executive summary
#Key legal issues
#Unfair termination versus desertion
The finding of unfair termination rather than desertion was not erroneous; the Appellant produced no show-cause or notice to the Respondent and its letter responding to the demand contradicted its oral evidence
The Chief Magistrate noted the Appellant had not produced any show-cause records. The Appellant's reply to the formal demand expressed surprise and stated the Respondent was still an employee, contradicting its witness's claim that he collected the letter. The Court found the Respondent's account that he was sent home upon demanding salary arrears plausible, given admitted financial difficulties.
Award of compensation under section 49(4) of the Employment Act
The trial Magistrate erred by not stating which section 49(4) factors she considered, but the 6 months' gross wages award was not a wrong exercise of discretion given about 4 years of service
Although the Chief Magistrate failed to articulate the section 49(4) factors, which the Court held to be an error of law and fact, the appellate court nonetheless found the quantum justified by the length of service (2016 to about 2022), and declined to interfere with the discretionary award.
Proof of salary arrears
The salary arrears of Kshs 174,800/- were proved by the Appellant's witness's admission under re-examination
The Appellant's witness admitted in re-examination that the Respondent was owed Kshs 174,800/- out of the claimed Kshs 394,000/-, despite vouchers being available but not produced. The Court held the Appellant bound by that admission.
Legal principles established
#- On a first appeal, the court must re-evaluate the evidence and reach its own conclusions while making allowance for not having seen or heard the witnesses
- An employer alleging desertion must at least inquire into the employee's whereabouts or issue a show-cause notice and accept the repudiation of the employment contract
- Failure to report to work without permission or lawful cause is a breach of contract and constitutes misconduct
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
- 2.The judgment of the Chief Magistrate (compensation of 6 months' wages, 1 month pay in lieu of notice, and salary arrears of Kshs 174,800/-) stands
- On appeal from
- Chief Magistrates Court, Kisii
- not stated
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court from the Chief Magistrates Court under the Employment Act regime (provision not expressly cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sauti ya Rehema Radio & Television Network Ltd v Ephraim Oduor Ochieng (Appeal E029 of 2023) [2023] KEELRC 2788 (KLR)", Case Analysis (2023). Memorandum of Appeal filed 22 May 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2788/eng@2023-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.