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ELRCPartially AllowedAppeal No. E012 of 2022· [2023] KEELRC 2812 (KLR)

Hatari Security Gurads Ltd v Odongo (Appeal E012 of 2022) [2023] KEELRC 2812 (KLR)

Employment and Labour Relations Court
9 November 2023
2,534 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisumu against a Trial Court judgment of 11th April 2022 which found that the Respondent employee was unfairly terminated and awarded Kshs. 150,000/-, being one month's salary in lieu of notice, damages for loss of employment equivalent to 12 months' pay, and leave earned. The Appellant employer contended that the Respondent deserted duty by returning his uniform and failing to report to work, and that the awards lacked legal basis. The court, per Christine N. Baari J, applied Selle v Associated Motor Boat Co. on the approach to first appeals and upheld the Trial Court's finding that the Respondent was unfairly terminated, holding that an employer alleging desertion must show efforts to reach out to the employee and take him through a disciplinary process. However, the court found the Trial Court gave no reasons for the maximum 12 months' compensation, and as the Respondent did not controvert the acts of misconduct, substituted three months' salary (Kshs. 30,000/-). The leave award was reduced from Kshs. 20,000/- to Kshs. 10,000/- since the Respondent served only one year. The notice pay award of Kshs. 10,000/- was upheld. The award of costs and interest was set aside, with the Respondent awarded half the costs of the lower court suit and each party bearing their own costs of the appeal. The appeal partly succeeded.

Key legal issues

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01

Whether the Respondent deserted duty or was unfairly terminated

Holding

The finding of unfair termination was upheld; the employer failed to demonstrate efforts to reach out to the employee or conduct a disciplinary process

Reasoning

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.

p. 5
02

Whether the maximum award of 12 months' salary was justified

Holding

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

Reasoning

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.

p. 6
03

Leave earned for one year of service

Holding

Reduced to one month's salary equivalent (Kshs. 10,000) as the Respondent served only one year

Reasoning

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.

p. 6
04

Notice pay

Holding

Upheld, as it was not disputed that no termination notice was issued nor paid in lieu

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The award of one-month salary in lieu of notice is upheld at Kshs. 10,000/-
  2. 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. 3.The award of Kshs. 20,000 for leave earned is set aside and substituted with Kshs. 10,000/-
  4. 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. 5.Each party shall bear their own costs of the appeal

Authorities

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Legislation

  • Employment Act, 2007Sections 41, 43, 45, 47
  • Employment ActSection 49

Cases cited (10)

  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Independent Electoral and Boundaries Commission & Ano. v Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Leonard Gethoi Kamweti v National Bank of Kenya Limited
    [2020] eKLR
  • United States International University vs. Eric Rading Outa
  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • William Gituma v RAA Limited
    [2020] eKLR
  • Ronald Nyambu Daudi v Tornado Carriers Limited
    [2019] eKLR
  • Chai Trading Co. Ltd v Joseph Kimathi Ikiamba
    [2018] eKLR
  • Kenfreight (E.A.) Limited v Benson K. Nguti
    [2016] eKLR
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
On appeal from
Trial Court (subordinate court)
Jurisdiction invoked
First appellate jurisdiction over the Trial Court judgment of 11th April 2022

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.