Endmor Steel Millers Ltd v Mburu (Appeal E14 of 2022) [2024] KEELRC 9 (KLR)
The bottom line
#Kenya's Employment Court threw out a Kshs.468,000 unfair dismissal award, finding the employee deserted his job rather than being verbally fired.
What this practically means
#Executive summary
#Key legal issues
#Effect of pleading constructive dismissal in some paragraphs while pleading unfair termination in others
The claim was grounded on unfair termination; the isolated references to constructive dismissal, unsupported by evidence, did not deny the Claimant reliefs for unfair termination
The court noted that although paragraphs 9 and 11 of the statement of claim referred to constructive dismissal, the preamble and paragraphs 4, 6, 7 and 15(a) were unambiguous that the case was based on unfair termination. The trial Magistrate relied on Sections 41 and 45 of the Employment Act and made no finding of constructive dismissal, so the pleadings point failed.
Nature of the Claimant's employment
Although initially a casual employee, the Claimant transitioned to term employment under Section 37 of the Employment Act, 2007, having worked continuously from August 2016 until April 2019
Attendance records showed intermittent service from August 2015 to 2016, but the NSSF statement showed consistent remittances from August 2016 to August 2019, indicating continuous service. The court adopted the reasoning in Esther Njeri Maina v Kenyatta University and found the trial court did not err on this issue.
Claimant's salary
The trial court did not err in accepting Kshs.36,000/= per month because the employer failed to keep and produce records as required by Section 74(1) of the Employment Act
Neither party adduced credible evidence on salary. The Claimant assessed it at Kshs.36,000/= without proof, but the appellant, obliged under Section 74(1) to keep written records including salary particulars and to give itemised pay statements, kept no records and tendered no evidence of amounts paid from 2012 to 2019, and therefore could not controvert the Claimant's figure.
Whether the employment was unfairly terminated or the Claimant deserted
The Claimant deserted duty from 30th April, 2019 and was not unfairly terminated; the claim for unfair dismissal was not proved
The Claimant's account of verbal dismissal on an undated 'Monday' after 30th April 2019 was internally contradictory: 30th April 2019 was a Tuesday, he never returned to the workplace, the alleged investigation report was never availed, and both parties' evidence was consistent that he did not report after 30th April 2019. The appellant's failure to issue a show-cause notice could not avail the Respondent who admitted desertion.
Whether 12 months' compensation was warranted
The issue fell away as the foundation for compensation (unfair termination) was not established
Having found that the Respondent deserted duty and was not unfairly terminated, the court held the issue on compensation was not amenable to determination, since the statutory basis for an award under Section 49(1)(c) of the Employment Act had fallen away with the finding that dismissal was not proved.
Legal principles established
#- A first appellate court must consider and evaluate the evidence itself and draw its own conclusions, while making allowance for not having seen or heard the witnesses
- Parties are bound by their pleadings
- Desertion of duty, if proved, renders an employee liable to summary dismissal
- An employee engaged as a casual labourer who renders continuous services transitions to a term contract under Section 37 of the Employment Act, 2007
- Where an employer fails to keep statutory employment records under Section 74(1) of the Employment Act, it is unable to controvert the employee's evidence on salary
Court orders
#- 1.The appeal is allowed
- 2.The judgment of the Honourable Court in Mavoko CMEL No. 98 of 2019 in John Ngotho Mburu v Endmore Steel Millers as reviewed, is hereby set aside in its entirety
- 3.Parties shall bear own costs
- On appeal from
- Magistrates' Court at Mavoko (CMEL Cause No. 98 of 2019, John Ngotho Mburu v Endmore Steel Millers Ltd)
- CMEL Cause No. 98 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's judgment and review ruling in CMEL Cause No. 98 of 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Endmor Steel Millers Ltd v Mburu (Appeal E14 of 2022) [2024] KEELRC 9 (KLR)", Case Analysis (2024). ELRC Appeal from Mavoko CMEL Cause No. 98 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/9/eng@2024-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.