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ELRCDismissedMemorandum of Appeal filed 22 May 2023 (number not stated in judgment)· [2023] KEELRC 2788 (KLR)

Sauti ya Rehema Radio & Television Network Ltd v Ephraim Oduor Ochieng (Appeal E029 of 2023) [2023] KEELRC 2788 (KLR)

Employment and Labour Relations Court
8 November 2023
1,323 words in judgment
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The bottom line

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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

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Executive summary

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Ephraim Oduor Ochieng sued Sauti Ya Rehema Radio & Television Network Ltd before the Chief Magistrates Court, Kisii, alleging unfair termination. On 25 April 2023 the Chief Magistrate found the termination unfair and awarded him 6 months' wages as compensation, one month's pay in lieu of notice, and salary arrears. The employer appealed, contending the respondent deserted duty, that unfair dismissal was not proved, that the compensation award was unjustified, and that salary arrears of Kshs 174,800/- were unproved. Radido J, sitting in Kericho, applied the first-appeal duty to re-evaluate evidence (Kamau v Mungai) and upheld the finding of unfair termination: the appellant produced no show-cause or notice to the respondent, and its letter responding to the demand lawyer's letter expressed surprise and asserted the respondent was still an employee, contradicting its witness's oral testimony that he had collected a recall letter. Invoking Societe General v Geys, the Court held that even if the respondent deserted, the employer should at least have sought his whereabouts or issued a show-cause. The Court noted the trial Magistrate erred in not stating which section 49(4) factors she considered, but upheld the 6 months' compensation given about four years of service. Salary arrears were proved by the appellant's witness's re-examination admission. The appeal was dismissed with costs to the respondent on 8 November 2023.

Key legal issues

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01

Unfair termination versus desertion

Holding

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

Reasoning

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.

p. 3
02

Award of compensation under section 49(4) of the Employment Act

Holding

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

Reasoning

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.

p. 4
03

Proof of salary arrears

Holding

The salary arrears of Kshs 174,800/- were proved by the Appellant's witness's admission under re-examination

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed with costs to the Respondent
  2. 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

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Act, 2007section 49(4)

Cases cited (2)

  • Kamau v Mungai
    (2006) 1 KLR 150
  • Societe General, London Branch v Geys
    (2012) UKSC 63
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

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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, "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.