Mnoi v Hakika Transport Services Limited (Cause 916 of 2015) [2023] KEELRC 3450 (KLR)
The bottom line
#A Kenyan court confirmed employers can lawfully dismiss workers who refuse a reasonable work transfer, even without a written employment contract.
What this practically means
#Executive summary
#Key legal issues
#Status of the employment relationship
The employment was continuous and regulated and thus protected under Section 37 despite no written contract
The claimant worked under the respondent's control and guidance, was allocated work daily, and his duties were not of a casual nature expected to end shortly. Continuous service from 1998 to 2015 brought the employment within the protection of Section 37 of the Employment Act, so it was not casual employment.
Lawfulness of the transfer and refusal to report
The transfer was a lawful exercise of the employer's prerogative; the claimant's refusal amounted to insubordination
Subject to sufficient notice, an employee is bound to take lawful directions of the employer. The claimant was given notice on 16 September 2015, an extension of 7 days on 7 October 2015 and further notice on 17 October 2015, yet never reported to Mazeras. His work station had properly shifted from Mombasa to Mazeras.
Justification of summary dismissal
Summary dismissal for absenteeism/refusal to transfer was justified under Sections 44(4)(a) and (e) read with Section 41(2)
The claimant was notified of absenteeism, given a show cause notice, invited to a disciplinary hearing on 22 October 2015 which he attended with a representative, and then dismissed on 26 October 2015. Absence from duty station without good cause and refusal of lawful instructions constitute gross misconduct warranting summary dismissal.
Claims for leave, off days, public holidays and overtime
All these monetary claims failed on the respondent's work records and the claimant's own admissions
The biometric/work schedules showed at least four days off per month satisfying Section 27; the claim for 357 leave days would be unjust enrichment given the higher monthly earnings from bonuses; no particulars of public holidays were given; and the agreed bonus system for extra trips defeated the overtime claim.
Legal principles established
#- An employer has the prerogative to transfer an employee subject to sufficient notice; refusal to take up a lawful transfer amounts to insubordination and absence without good cause justifying summary dismissal
- Continuous, regulated employment under the employer's control is protected under Section 37 of the Employment Act even without a written contract
- An employee absent from his duty station without good cause or refusing lawful directions commits gross misconduct justifying summary dismissal
Court orders
#- 1.The claim is dismissed in its entirety
- 2.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mnoi v Hakika Transport Services Limited (Cause 916 of 2015) [2023] KEELRC 3450 (KLR)", Case Analysis (2023). ELRC Cause (Mombasa) – unnumbered on face of judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3450/eng@2023-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.