Warutumo v Chemigas Limited (Cause 1551 of 2018) [2023] KEELRC 3080 (KLR)
The bottom line
#An employer without written contracts or leave records must accept the employee's version — and it cost them over Kshs. 1 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant resigned, thereby initiating termination
The Court found the Claimant did not write or issue the resignation letter and that, in any event, the resignation postdated the summary dismissal
The letter of resignation was of questionable authenticity: it referenced a medical report the Respondent claimed never to have received, and it postdated the letter of summary dismissal. Since the dismissal issued before the Respondent had wind of any resignation, the Respondent initiated termination. The Court was also influenced by the Claimant's lack of reason to resign while on leave, his illiteracy in English, and the absence of his signature on the letter.
Whether termination was procedurally fair
Termination was procedurally unfair and failed the minimum statutory standards under Sections 41 and 45 of the Employment Act
The Respondent's Manager conceded on cross-examination that the Claimant was not heard, was not issued a show-cause letter, was not contacted about his whereabouts, no sick-leave procedures were exhibited, and the desertion letter was not withdrawn even after the purported resignation. These evidential concessions established a fundamentally flawed procedure contrary to Sections 41 and 45 of the Employment Act 2007.
Whether termination was based on a valid reason
Yes – absence from the appointed place of work without leave or lawful cause constituted gross misconduct under Section 44para 4[a]
Although the Claimant likely fell ill with allergic bronchitis while on leave, the medical report did not advise him to keep away from work or order bed rest. He had already been reasonably accommodated by being reassigned from long-distance windy routes. There was no evidence his extended stay was authorized. His overstaying without communication amounted to gross misconduct under Section 44para 4[a].
Entitlement to annual leave pay
Granted – the Respondent failed to exhibit leave records or a written contract, so the Claimant's oral evidence of 21 days' leave was upheld
The Respondent did not issue a written contract and failed to exhibit employment records, leave forms, or pay slips supporting its claim that leave was to be utilized within 2 years and that no days were outstanding. Under Section 74para 1[f] read with Section 28 and Section 10para 7 of the Employment Act, the burden fell on the Employer. The Claimant was awarded 218.5 days' leave pay calculated at his salary.
Compensation for unfair termination
Awarded the equivalent of 4½ months' gross salary, taking into account the Claimant's contribution to the termination
Termination was valid in reason but procedurally flawed. The Claimant substantially caused the circumstances leading to termination by overstaying his leave. Balancing his 11.5 years of service, lack of evidence of terminal dues paid, and failure to secure alternative employment against his own contribution, the Court awarded 4½ months' gross salary as compensation.
Legal principles established
#- Where an employer fails to produce a written contract or written particulars, the burden of proving or disproving an alleged term of contract is on the employer
- An employer must keep written records of an employee's annual leave entitlement, days taken and days due
- A resignation letter received after a summary dismissal letter is immaterial; the employer is treated as having initiated termination
Court orders
#- 1.It is declared that termination was unfair on account of procedure
- 2.The Respondent shall pay to the Claimant annual leave pay at Kshs. 686,207 and compensation for unfair termination at Kshs. 367,443 – total Kshs. 1,053,650
- 3.Certificate of Service to issue
- 4.No order on the costs
- 5.Interest granted at court rate, from the date of Judgment, till payment is made in full
- Jurisdiction invoked
- First-instance jurisdiction of the Employment and Labour Relations Court over an employment dispute (Statement of Claim filed 23rd November 2018)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Warutumo v Chemigas Limited (Cause 1551 of 2018) [2023] KEELRC 3080 (KLR)", Case Analysis (2023). Cause No 1551 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3080/eng@2023-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.