Muthini & 8 others v Touch Down Tours Limited (Cause 2209 of 2017) [2024] KEELRC 105 (KLR)
The bottom line
#A Kenyan court ruled nine employees were unfairly terminated because their employer couldn't prove they were casual workers or had deserted duty, awarding compensation and costs.
What this practically means
#Executive summary
#Key legal issues
#Nature of employment - casual or permanent
The Respondent failed to prove on a preponderance of probabilities that the Claimants were casual employees
The Respondent's evidence was contradictory: it claimed daily/weekly payment yet referred to struggling to raise monthly salaries; it alleged leave with pay and NSSF contributions, inconsistent with casual employment; and it produced no payroll or documentary evidence to support its denial of the employment terms.
Desertion versus unfair termination
The Respondent failed to establish that the Claimants absconded duty; termination was unfair for want of substantive justification and procedural fairness
The employer admitted it issued no notice to show cause, no termination letter, made no report to the Labour Officer and had no evidence of efforts to reach the Claimants. No valid reason or fair procedure under Section 45 of the Employment Act was proved.
Quantum of compensation under Section 49(1)(c)
Equivalent of 4 months' gross salary for the Transport Manager and 2 months' for the drivers awarded
Neither party produced verifiable evidence of salaries; under Section 10(7) the burden fell on the employer. Considering length of service, the salary dispute to which both sides contributed, and absence of misconduct records, the court found 4 months' compensation for the 1st Claimant and 2 months' for the others fair.
Legal principles established
#- An employer claiming desertion must demonstrate the steps taken to contact the employee to resume duty
- Termination must be supported by both substantive justification and procedural fairness
- Where an employer fails to produce written particulars of employment, the burden of proving or disproving an alleged term falls on the employer
Court orders
#- 1.Declaration that termination of the Claimants' employment was unfair
- 2.One month's salary in lieu of notice for each Claimant
- 3.Equivalent of 4 months' salary as compensation for the 1st Claimant
- 4.Equivalent of 2 months' salary as compensation for the 2nd to 9th Claimants
- 5.Costs of the suit to the Claimants
- 6.Interest at court rates from the date of judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair/unlawful termination and terminal dues claims under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthini & 8 others v Touch Down Tours Limited (Cause 2209 of 2017) [2024] KEELRC 105 (KLR)", Case Analysis (2024). Cause No 2209 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/105/eng@2024-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.