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ELRCPartially AllowedPetition dated 12th July 2023· [2024] KEELRC 293 (KLR)

Bakhoya v Chane & another (Employment and Labour Relations Petition E147 of 2023) [2024] KEELRC 293 (KLR)

Employment and Labour Relations Court
16 February 2024
AMAnna Ngibuini Mwaure
5,592 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan employer cannot dismiss an absent employee as having absconded without first trying to find them and giving them a hearing.

What this practically means

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Executive summary

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The Petitioner, employed as a house manager and caregiver for the Respondents from 2013 until 2023, petitioned the Employment and Labour Relations Court alleging that her employment was terminated by WhatsApp message without notice, reason or a hearing after she took sick leave and sustained a leg injury. She also alleged sexual harassment, degrading insults, unpaid overtime, denial of leave and non-payment of house allowance, and sought redress for violations of Articles 27, 28 and 41 of the Constitution. The Respondents contended she resigned in 2021, was rehired, and later absconded for about two months without notice, justifying her replacement, and raised limitation and constitutional-avoidance objections. The court framed three issues: discrimination, constitutional violations and entitlement to reliefs. It found the discrimination claim unproved for want of a comparator and because the Petitioner failed to inform the Respondents directly of her inability to resume work. However, applying the settled procedure for absconding employees, the court held the Respondents' termination procedurally unfair: they took no steps to verify her whereabouts, issued no notice to show cause and accorded no hearing, contrary to section 41 of the Employment Act and Article 41(2) of the Constitution. The WhatsApp insults were unchallenged and supported the dignity claim, but the forced washing allegation lacked corroboration and was held unproven. The court awarded one month's salary in lieu of notice, house allowance of Kshs 450,000, four months' salary as compensation, and directed service pay to be tabulated; leave and overtime claims were declined, with costs and interest against the Respondents.

Key legal issues

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01

Whether the termination was discriminatory on the basis of health status

Holding

Discrimination not proved; the Petitioner failed to show differential treatment against a comparator

Reasoning

The court applied section 5(7) of the Employment Act and section 108 of the Evidence Act on burden of proof. While an employer alleged of discrimination must justify its actions, the claimant first had to demonstrate she was treated differently from others in similar circumstances. No comparator was produced and the Petitioner informed third parties instead of the Respondents about her inability to resume work.

p. 8
02

Whether the termination for alleged absconding was procedurally fair

Holding

Termination was procedurally unfair in breach of section 41 of the Employment Act and Article 41(2) of the Constitution

Reasoning

The Respondents produced no evidence of taking any step to check on the Petitioner or confirm why she failed to resume work, nor did they issue a notice to show cause or invite her to a disciplinary hearing. For an employee of ten years' service, the employer must have known how to reach her. Absent that procedure, abandonment of duty cannot lawfully close the employment relationship.

p. 9
03

Whether the Petitioner's constitutional rights were violated

Holding

Right to fair labour practices under Article 41 violated by the unfair termination; the WhatsApp insults were not denied and impugned the right to dignity, but the sexual harassment allegation was unproven

Reasoning

Applying the Anarita Karimi Njeru specificity threshold, the court found the string of WhatsApp messages insulting the Petitioner was produced in court and not denied by the 2nd Respondent. However, the allegation of forced washing and massaging lacked corroborative circumstantial evidence and was found unproven. The failure to follow section 41 procedure amounted to a violation of fair labour practices.

p. 11

Legal principles established

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  • An employer must take reasonable steps to establish the whereabouts of an absconding employee and follow internal disciplinary channels before pleading abandonment of duty
  • Desertion is a unilateral act that cannot terminate a contract of service until the employer acts on it
  • A constitutional petition must plead with reasonable precision the provisions infringed and the manner of infringement

Court orders

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  1. 1.One month salary in lieu of notice of Kshs 25,000/-
  2. 2.Service pay for ten years to be presented to court in detail by 28/2/2024 as there are no records of remittance to NSSF
  3. 3.House allowance of Kshs 450,000/- as Respondents never tendered proof they were paying house allowance
  4. 4.Four months' equivalent of salary as compensation for unlawful termination of Kshs 100,000/-
  5. 5.Costs and interest on the total award of Kshs 575,000/- at court rates from the date of judgment till full payment against the 1st and 2nd Respondents
  6. 6.Service charge to be presented to court on 28/2/2024 upon both parties working it out or presenting evidence of remittance to NSSF

Authorities

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Legislation

  • Constitution of KenyaArticle 41(1), 41(2), 47, 27(4) and (5), 28, 159(2)(d), 22(1), 48
  • Employment ActSections 5(3), 5(7), 15, 28, 41(1), 41(2), 42(1), 44(3), 44(4), 45(5)(a), 47(5), 90
  • Evidence ActSections 108, 109
  • Civil Procedure RulesOrder 2 rule 11; Order 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (15)

  • Felistas Acheha Ikatwa vs Charles Peter Otieno
    (2018) eKLR
  • Solid Doors (Pty) Ltd Vs Commissioner Theron and Others
    (2004) 25 ILJ 237 (LAC)
  • Magare Gikenyi J. Benjamin v County Government of Nakuru & 4 others
    [2020] eKLR
  • Anarita Karimi Njeru vs Republic
    [1976-80] KLR 1272; [1979] KLR 154
  • Josephat Ndirangu v Henkel Chemicals (EA) Ltd
    [2013] eKLR
  • Gichuru vs Package Insurance Brokers Ltd
    (Petition 36 of 2019) [2021] KESC 12 (KLR)
  • Peter K Waweru vs Republic
    [2006] eKLR
  • Samson Gwer & 5 others v Kenya Medical Research Institute & 3 others
    [2020] eKLR
  • James Okeyo v Maskant Flower Limited
    [2015] eKLR
  • Joseph Nzioka v Smart Coatings Limited
    [2017] eKLR
  • Julius Kyalo Malonza v Ruth Osolo t/a Eraeva Catering Services
    [2021] eKLR
  • Mumo Matemo v Trusted Society of Human Rights Alliance
    Civil App 290/2012 (2013) eKLR
  • Kanya vs Attorney General Republic of Kenya & 2 others
    (Constitutional Petition E085 of 2022) [2022] KEHC 3284 (KLR)
  • Communications Commission for Kenya & 5 others v. Royal Media Services Limited & 5 others
    [2014] eKLR
  • Kenfreight (EA) Limited vs Benson K. Nguti
    [2016] eKLR Civil Appeal No 31 of 2015
Jurisdiction invoked
Articles 41 and 47 of the Constitution of Kenya, 2010 read with the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bakhoya v Chane & another (Employment and Labour Relations Petition E147 of 2023) [2024] KEELRC 293 (KLR)", Case Analysis (2024). Petition dated 12th July 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/293/eng@2024-02-16

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