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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 147 (KLR)

Mbuvi & another v Board of Management AIC Nunguni Secondary School (Cause 1167 of 2017) [2024] KEELRC 147 (KLR)

Employment and Labour Relations Court
8 February 2024
LNLinnet Ndolo
1,718 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that calling an absent employee a 'deserter' requires proof, awarding two security guards compensation for unfair termination.

What this practically means

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Executive summary

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The Claimants, security guards employed by AIC Nunguni Secondary School from 2004 and 2009 respectively, were suspended on 2nd April 2015 following allegations of theft of a school bus alternator. They were charged in Kilungu Law Courts Criminal Case No 185 of 2015 and acquitted of all charges. They were never reinstated, and they sued claiming that their indefinite suspension amounted to constructive and unfair termination. The Respondent denied terminating them, contending instead that the Claimants deserted duty after being released on bail, ignored invitations to appear before the Board of Management, and had reached retirement age. It filed a Counterclaim for pay in lieu of notice based on the alleged desertion. The court framed three issues: unlawful termination, remedies, and the Counterclaim. It held that desertion requires proof of the employee's intention not to return, and that an employer must show efforts to reach the employee and give notice that termination is contemplated. The Respondent only made contact after a demand letter and after the suit was filed, which the court described as a kneejerk reaction. Finding desertion unproved, the court held that the termination was without justifiable cause and in violation of due process. It awarded nine months' salary to the 1st Claimant and twelve months' to the 2nd Claimant, plus one month's notice pay each, with interest, certificates of service and costs. Leave pay, service pay, and claims for rest days, overtime and public holidays were disallowed for want of proof, and the Counterclaim was dismissed.

Key legal issues

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01

Whether the Respondent proved that the Claimants deserted duty

Holding

The Respondent failed to establish desertion; the Claimants' claim of unfair termination stood unassailed.

Reasoning

Desertion requires proof of intention not to return, which must be deduced from facts such as lack of communication, duration of absence and employer's efforts to reach out. The Respondent, having caused the Claimants' arrest on a theft complaint, could not feign ignorance of developments in the criminal case. It only made contact after a demand letter and after the claim was filed - a kneejerk reaction falling short of due notice. The court found the Respondent simply sat out the Claimants' woes hoping the relationship would fizzle out.

p. 4
02

Remedies for unlawful and unfair termination

Holding

Nine months' salary compensation for the 1st Claimant and twelve months for the 2nd Claimant, plus one month's pay in lieu of notice each; leave pay, service pay, rest days, overtime and public holidays claims disallowed for want of proof.

Reasoning

Compensation was calibrated on the Claimants' respective periods of service (2004 for the 2nd Claimant, 2009 for the 1st) and the Respondent's unlawful conduct in ending the employment relationship. Notice pay was awarded as of right. Heads of claim contradicted by the Claimants' own testimony (leave taken, NSSF remitted) or unsupported by evidence (rest days, overtime, public holidays) were disallowed.

p. 5
03

The Respondent's Counterclaim

Holding

The Counterclaim failed and was dismissed.

Reasoning

The Counterclaim sought pay in lieu of notice on the basis that the Claimants deserted duty. Since the court found the desertion allegation unproved, the factual foundation of the Counterclaim collapsed and it was dismissed.

p. 5

Legal principles established

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  • Desertion is distinguishable from unauthorised absence; it requires proof of the employee's intention not to return to work.
  • An employer alleging desertion must show efforts made to reach out to the employee and put them on notice that termination is being considered.
  • Desertion is not a self-evident defence; the employer must prove it.

Court orders

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  1. 1.Judgment for the 1st Claimant, Joseph Musau Mbuvi: Kshs 103,500 (9 months' salary compensation) plus Kshs 11,500 (1 month's salary in lieu of notice), total Kshs 115,000
  2. 2.Judgment for the 2nd Claimant, David Maweu Kithima: Kshs 138,000 (12 months' salary compensation) plus Kshs 11,500 (1 month's salary in lieu of notice), total Kshs 149,500
  3. 3.Interest at court rates on the awarded amounts from the date of judgment until payment in full
  4. 4.Certificates of service to be issued to the Claimants
  5. 5.Costs of the case to the Claimants
  6. 6.Respondent's Counterclaim dismissed
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mbuvi & another v Board of Management AIC Nunguni Secondary School (Cause 1167 of 2017) [2024] KEELRC 147 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/147/eng@2024-02-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.