Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 2209 of 2017· [2024] KEELRC 105 (KLR)

Muthini & 8 others v Touch Down Tours Limited (Cause 2209 of 2017) [2024] KEELRC 105 (KLR)

Employment and Labour Relations Court
1 February 2024
3,163 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

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

#
Nine claimants, led by Patrick Muoka (Transport Manager) and including eight drivers and an excavator operator, sued their employer for unfair/unlawful termination and terminal dues following a salary dispute in mid-2017. They alleged summary dismissal by word of mouth after inquiring about unpaid June 2017 salaries, and claimed notice pay, leave, off-days, public holidays, service/gratuity, house allowance and compensatory damages. The Respondent contended it faced financial constraints after the 2017 General Election, that the claimants were casual employees paid daily/weekly, and that they deserted duty on 10th June 2017, making disciplinary procedures impossible. The court framed three issues: the nature of employment, whether termination was unfair or the claimants deserted, and entitlement to reliefs. It found the Respondent's evidence contradictory (monthly salaries versus daily payment; leave and NSSF claims inconsistent with casual status) and held the Respondent failed to prove casual employment. On desertion, the Respondent admitted issuing no notice to show cause, no termination letters, and no report to the Labour Officer, and had no evidence of efforts to reach the claimants; the court held the termination unfair for want of substantive justification and procedural fairness. The declaration, one month's pay in lieu of notice, and compensation of four months' gross salary for the 1st Claimant and two months' for the others were awarded, with costs and interest. Claims for leave, off-days, public holidays, gratuity, house allowance and overtime failed for want of evidence and particulars.

Key legal issues

#
01

Nature of employment - casual or permanent

Holding

The Respondent failed to prove on a preponderance of probabilities that the Claimants were casual employees

Reasoning

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.

p. 5
02

Desertion versus unfair termination

Holding

The Respondent failed to establish that the Claimants absconded duty; termination was unfair for want of substantive justification and procedural fairness

Reasoning

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.

p. 6
03

Quantum of compensation under Section 49(1)(c)

Holding

Equivalent of 4 months' gross salary for the Transport Manager and 2 months' for the drivers awarded

Reasoning

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.

p. 8

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. 1.Declaration that termination of the Claimants' employment was unfair
  2. 2.One month's salary in lieu of notice for each Claimant
  3. 3.Equivalent of 4 months' salary as compensation for the 1st Claimant
  4. 4.Equivalent of 2 months' salary as compensation for the 2nd to 9th Claimants
  5. 5.Costs of the suit to the Claimants
  6. 6.Interest at court rates from the date of judgment until payment in full

Authorities

#

Legislation

  • Employment ActSection 2 (definition of casual employee)
  • Employment ActSection 45
  • Employment ActSection 49(1)(c)
  • Employment ActSection 10(7)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (8)

  • Mariita V Leading Locks & Access Systems
    (2022) eKLR
  • Boniface Musyoka Kyambo V DPL Festive Ltd
    (2021) eKLR
  • Emmanuel Mambo Oduory V One Acre Fund
    (2020) eKLR
  • Seabolo V Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Simon Mbithi Mbane V Inter Security Services Ltd
    (2018) eKLR
  • Joseph Nzioka V Smart Coatings Ltd
    (2017) eKLR
  • Felistas Acheha Ikatwa V Charles Peter Otieno
    (2018) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
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.