Wamukobole v Dawida Maternity & Nursing Home (Appeal E013 of 2023) [2024] KEELRC 56 (KLR)
The bottom line
#A Kenyan court ruled that claiming an employee absconded isn't enough—employers must prove it with disciplinary records, or the termination is unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant's employment was terminated by the Respondent
On a balance of probability the Appellant's employment was terminated by the Respondent; the Respondent's allegations of lateness and rudeness were unsupported by evidence.
It was common ground that the Appellant left employment on 11th October 2021; what was disputed was how he left. The Respondent alleged absconding but adduced no evidence of any disciplinary action taken, while its allegations of lateness and insults were unsupported. Weighing the evidence, the Court found the Appellant's account of verbal dismissal more probable.
Whether the termination was unfair
The termination was unfair: no termination notice under Section 35(1)(c) was given and the Respondent failed to prove a valid reason.
The Respondent neither issued a termination notice under Section 35(1)(c) of the Employment Act nor demonstrated a valid reason for the termination. Under Section 43(1), termination is unfair where the employer fails to prove the validity of the reasons. The Appellant was therefore awarded the equivalent of seven months' salary as compensation.
Entitlement to the reliefs declined by the trial Court
Compensation of seven months' salary (Kshs. 245,000), one month's salary in lieu of notice (Kshs. 35,000) and a certificate of service were awarded; claims for October 2021 salary and service pay were declined.
Having found the termination unfair, the Court awarded seven months' salary as compensation and allowed the notice pay claim. The October 2021 salary claim failed for lack of rebuttal of payment, and service pay failed because it was not contractually provided under Section 35(5). A certificate of service was awarded under Section 51(1).
Legal principles established
#- An employer who alleges that an employee absconded duty must demonstrate what disciplinary action he took against the absconding employee; the employer bears a higher legal duty.
- Termination is unfair where the employer fails to prove the validity of the reason for termination and fails to issue notice.
Court orders
#- 1.Judgment entered for the Appellant against the Respondent totalling Kshs. 366,750 (Kshs. 86,750 upheld from the trial court; Kshs. 245,000 compensation for unfair termination; Kshs. 35,000 one-month salary in lieu of notice)
- 2.The awarded sum shall be subject to statutory deductions pursuant to Section 49(2) of the Employment Act
- 3.The Respondent shall issue a Certificate of Service to the Appellant pursuant to Section 51(1) of the Employment Act within thirty days of the Judgment
- 4.The Appellant is awarded costs of the appeal and of the proceedings in the court below
- 5.The Appellant is awarded interest at Court rates from the date of the Judgment
- 6.The trial Court's Judgment is set aside to the extent set out in the Judgment
- On appeal from
- Voi Chief Magistrate's Court
- Employment Case No. E015 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over the Voi Chief Magistrate's Court Employment Case No. E015 of 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wamukobole v Dawida Maternity & Nursing Home (Appeal E013 of 2023) [2024] KEELRC 56 (KLR)", Case Analysis (2024). Voi Chief Magistrate's Court Employment Case No. E015 of 2021 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/56/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.