Muema v Two Ways Logistics Services Limited & another (Employment and Labour Relations Cause 1553 of 2015) [2023] KEELRC 3188 (KLR)
The bottom line
#A Kenyan court awarded a driver Kshs. 338,286.20 after his employer failed to prove he deserted duty, confirming employers must evidence termination reasons.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's employment was unfairly terminated
Yes - the Respondents' allegation of abscondment was unsupported by any evidence and no due process was followed; the Claimant's evidence remained uncontroverted.
The Respondents pleaded abscondment but called no witness and filed no documents, having failed to appear at hearings so that their case was closed. Under sections 10(6), (7) and 43 of the Employment Act the employer bears the burden of proving reasons for termination and producing records. Without proof of desertion or of any hearing or notice, the verbal termination when the Claimant sought his salary arrears was unfair both substantively and procedurally.
Entitlement to terminal dues and compensatory damages
The Claimant was awarded notice pay, salary arrears, off days, leave pay, house allowance and six months' salary as compensation under section 49(4) of the Employment Act, totaling Kshs. 338,286.20.
The uncontroverted evidence established unpaid salary from January to 7th May 2015, denial of off days and leave throughout the service period from 14th February 2011, and no house allowance, the Claimant's Kshs. 15,000 salary being below the statutory minimum wage of Kshs. 16,602.85 for a driver which carries a 15% house allowance. Compensation of six months' salary was granted taking into account the section 49(4) factors.
Legal principles established
#- An employer alleging that an employee deserted duty must prove the efforts made to get the employee to resume duty, including at the very least a notice that termination for desertion is being considered.
- It is the employer's statutory duty to keep and produce employment records and to bear the burden of proving the reasons for termination.
Court orders
#- 1.Declaration that the termination of the Claimant's employment was unfair (implicit in the award of remedies)
- 2.Payment of one month's salary in lieu of notice of Kshs. 15,000
- 3.Payment of salary arrears of Kshs. 63,450
- 4.Payment for off days of Kshs. 71,700
- 5.Payment in lieu of annual leave of Kshs. 38,365.40
- 6.Payment of house allowance of Kshs. 59,770.80
- 7.Compensation for unfair termination equivalent to 6 months' salary of Kshs. 90,000
- 8.Total award of Kshs. 338,286.20
- 9.Respondent to pay the Claimant's costs of the suit
- 10.Interest to accrue from the date of judgment at court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; specific enabling provision not stated in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muema v Two Ways Logistics Services Limited & another (Employment and Labour Relations Cause 1553 of 2015) [2023] KEELRC 3188 (KLR)", Case Analysis (2023). Eldoret ELRC Claim, Memorandum of Claim dated 5th August 2015, filed 3rd September 2015 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3188/eng@2023-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.