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ELRCPartially AllowedEldoret ELRC Claim, Memorandum of Claim dated 5th August 2015, filed 3rd September 2015 (case number not stated in judgment)· [2023] KEELRC 3188 (KLR)

Muema v Two Ways Logistics Services Limited & another (Employment and Labour Relations Cause 1553 of 2015) [2023] KEELRC 3188 (KLR)

Employment and Labour Relations Court
30 November 2023
1,815 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant was employed by the 1st Respondent as a turn boy on 14th February 2011 at Kshs. 8,000 per month, later promoted to driver in April 2014 at Kshs. 15,000, and continued with the 2nd Respondent after an acquisition until 7th May 2015, when he was allegedly ordered to pack up and leave after inquiring about unpaid salary from January to May 2015. The Respondents admitted the employment relationship but alleged the Claimant absconded duty from 8th May 2015; however, they called no witness and filed no documents, their case being closed on 13th July 2022 after repeated non-attendance despite service. The court held the Claimant's evidence uncontroverted and, applying sections 10(6), (7) and 43 of the Employment Act together with the Felistas Acheha Ikutwa and Judith Atieno Owuor authorities on desertion, found the verbal termination without notice or due process substantively and procedurally unfair. Awards were made for one month's notice pay (Kshs. 15,000), salary arrears (Kshs. 63,450), off days (Kshs. 71,700), accrued annual leave of 66.5 days (Kshs. 38,365.40), house allowance at 15% of the statutory minimum wage for 24 months (Kshs. 59,770.80), and six months' salary compensation under section 49(4) (Kshs. 90,000), totaling Kshs. 338,286.20, with costs to the Claimant and interest from the date of judgment at court rates.

Key legal issues

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01

Whether the Claimant's employment was unfairly terminated

Holding

Yes - the Respondents' allegation of abscondment was unsupported by any evidence and no due process was followed; the Claimant's evidence remained uncontroverted.

Reasoning

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.

p. 4
02

Entitlement to terminal dues and compensatory damages

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Declaration that the termination of the Claimant's employment was unfair (implicit in the award of remedies)
  2. 2.Payment of one month's salary in lieu of notice of Kshs. 15,000
  3. 3.Payment of salary arrears of Kshs. 63,450
  4. 4.Payment for off days of Kshs. 71,700
  5. 5.Payment in lieu of annual leave of Kshs. 38,365.40
  6. 6.Payment of house allowance of Kshs. 59,770.80
  7. 7.Compensation for unfair termination equivalent to 6 months' salary of Kshs. 90,000
  8. 8.Total award of Kshs. 338,286.20
  9. 9.Respondent to pay the Claimant's costs of the suit
  10. 10.Interest to accrue from the date of judgment at court rates

Authorities

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Legislation

  • Employment Actsection 10(6) and (7)
  • Employment Actsection 43
  • Employment Actsection 49(4)
  • Regulation of Wages (General) Orderbasic minimum wage for a driver, medium sized vehicle (2013 order, operative from 1st May 2013)

Cases cited (2)

  • Felistas Acheha Ikutwa v Charles Peter Otieno
    (2018) eKLR
  • Judith Atieno Owuor v Sameer agriculture and Livestock Limited
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; specific enabling provision not stated in judgment)

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, "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.