Hatari Security Gurads Ltd v Odongo (Appeal E012 of 2022) [2023] KEELRC 2812 (KLR)
The bottom line
#A Kenyan court confirmed firing an employee as 'desertion' without trying to contact them is unfair, but slashed the compensation because maximum awards need justification.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent deserted duty or was unfairly terminated
The finding of unfair termination was upheld; the employer failed to demonstrate efforts to reach out to the employee or conduct a disciplinary process
The Appellant asked the Respondent to resign, and when he left without a formal resignation, treated it as desertion without contacting him or subjecting him to disciplinary procedure. Citing William Gituma v RAA Limited and Ronald Nyambu Daudi v Tornado Carriers Limited, an employer alleging desertion must show efforts to reach out to the employee. The court upheld the Trial Court's finding of unfair termination.
Whether the maximum award of 12 months' salary was justified
Set aside and substituted with three months' salary because the Trial Court gave no reasons and the Respondent did not controvert the acts of misconduct
Relying on Chai Trading Co. Ltd v Joseph Kimathi Ikiamba and Kenya Broadcasting Corporation v Geoffrey Wakio, a maximum award must rest on sound judicial principles with reasons. The Trial Court did not justify the maximum award, and the Respondent did not deny reporting late and refusing lawful orders, so maximum compensation was not proved.
Leave earned for one year of service
Reduced to one month's salary equivalent (Kshs. 10,000) as the Respondent served only one year
The Respondent served only one year and was entitled to leave pay for that single year only, being one month's salary, not the two months (Kshs. 20,000) awarded by the Trial Court.
Notice pay
Upheld, as it was not disputed that no termination notice was issued nor paid in lieu
The court found undisputed that the Respondent was neither issued a termination notice nor paid in lieu of notice, so the Trial Court's award on account of termination notice was upheld.
Legal principles established
#- An employer alleging desertion must show efforts made towards reaching out to the employee
- An award of the maximum 12 months' compensation must be justified with reasons and sound judicial principles
Court orders
#- 1.The award of one-month salary in lieu of notice is upheld at Kshs. 10,000/-
- 2.The award of 12 months' salary as damages for loss of employment is set aside and substituted with three months' salary at Kshs. 30,000/-
- 3.The award of Kshs. 20,000 for leave earned is set aside and substituted with Kshs. 10,000/-
- 4.The award of costs and interest is set aside, and the Respondent awarded half the costs of the suit before the lower court
- 5.Each party shall bear their own costs of the appeal
- On appeal from
- Trial Court (subordinate court)
- Jurisdiction invoked
- First appellate jurisdiction over the Trial Court judgment of 11th April 2022
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Brurudika Holdings Limited & another v Onyango (Appeal E110 of 2023) [2024] KEELRC 2315 (KLR)[2024] KEELRC 2315 (KLR)26 Sept 2024applied
Cite this brief
#Cite this brief
Caselaw, "Hatari Security Gurads Ltd v Odongo (Appeal E012 of 2022) [2023] KEELRC 2812 (KLR)", Case Analysis (2023). Appeal No. E012 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2812/eng@2023-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.