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ELRCPartially AllowedMombasa ELRC Appeal (No. not stated in judgment) – appeal from Mombasa CM ELRC No. 303 of 2018· [2024] KEELRC 371 (KLR)

Bash Hauliers Limited v Wachira (Appeal E073 of 2023) [2024] KEELRC 371 (KLR)

Employment and Labour Relations Court of Kenya at Mombasa
22 February 2024
MMM. Mbarũ
1,503 words in judgment
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The bottom line

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A Kenyan court confirmed that 'desertion' does not end an employment contract by itself—employers must still follow proper procedure before treating an absent employee as dismissed.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa against the judgment of the Chief Magistrate's Court in Mombasa CM ELRC No. 303 of 2018, delivered on 30 June 2023, which found unfair termination of the respondent's employment as a driver (April 2015 to December 2016, wage Kshs. 28,000 per month) and awarded him his claims with costs. The appellant contended there was no employment relationship between the parties. The court, exercising its first appellate duty to re-evaluate the evidence, held that the appellant's own witness statements confirmed the employment relationship and that the assertion of no employment related to a period outside the claim period; the employer also failed to file work records as required by Sections 10(6) and (7) of the Employment Act, and its application to amend the response was never prosecuted. On desertion, the court held that an employee's desertion does not itself terminate employment: the employer must show reasonable measures to reach the employee and, failing that, notify the Labour Officer under Section 18(5). The termination without notice or hearing was therefore unfair. The maximum 12-month compensation award was reduced to three months (Kshs. 84,000) for want of justification; notice pay (Kshs. 28,000) and leave pay (Kshs. 22,615) were upheld; claims for public holiday pay, overtime and service pay were disallowed for lack of particulars or foundation. A certificate of service was ordered. Costs were not awarded, each party bearing its own costs in the appeal and the lower court.

Key legal issues

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01

Existence of an employment relationship

Holding

The trial court's finding of an employment relationship could not be faulted; the appellant's own witness statements confirmed the respondent was employed as a driver.

Reasoning

The appellant asserted there was no employment relationship, but its own witness statements (of the HR manager and supervisor) confirmed the respondent was employed as a driver. The assertion that he was not an employee between 2016 and 2019 related to a period outside the claim period (April 2015 to December 2016), whose last day was 14 December 2016. The appellant also failed to file work records as required under Sections 10(6) and (7) of the Employment Act, and the amendment application was never prosecuted.

p. 3
02

Unfair termination and desertion

Holding

Termination for alleged desertion without notice or hearing was unfair; the employer must show reasonable measures to reach the employee and notify the Labour Officer.

Reasoning

Desertion by an employee does not itself terminate employment. The employer alleging desertion must show reasonable efforts to reach the employee for an explanation, and where efforts fail, notify the Labour Officer under Section 18(5) of the Act. Absence from duty punishable by summary dismissal under Section 44(4)(a) still requires notice to the employee to explain conduct. The respondent's evidence that he was sent away in December 2016 without notice or hearing stood correct.

p. 3
03

Assessment of remedies

Holding

Compensation reduced to three months (Kshs. 84,000); notice pay and leave pay upheld; public holidays, overtime and service pay claims disallowed.

Reasoning

The maximum 12-month compensation award required justification which the trial court did not give; given the respondent's short service (April 2015 to December 2016) and lack of shown mitigation, three months was appropriate. Leave pay was justified since the appellant produced no leave records under Section 28. Public holiday pay lacked particulars, overtime lacked a foundation of hours, and service pay required proof statutory dues were unpaid.

p. 3

Legal principles established

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  • A first appellate court must re-evaluate the whole evidence and arrive at its own conclusions while bearing in mind it did not see or hear the witnesses.
  • Desertion does not automatically terminate employment; the employer must take reasonable measures to reach the employee and, where efforts fail, notify the Labour Officer under Section 18(5) of the Employment Act.
  • The maximum 12-month compensation must be judicially justified and not applied as a matter of course.
  • The employer bears the legal duty to file work records in defence of employment claims.

Court orders

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  1. 1.The judgment in Mombasa CM ELRC No. 303 of 2018 reviewed with compensation awarded at Kshs. 84,000
  2. 2.Notice pay of Kshs. 28,000 upheld
  3. 3.Leave pay of Kshs. 22,615 upheld
  4. 4.Certificate of service to be issued
  5. 5.For the appeal and proceedings in the lower court, each party to bear own costs
On appeal from
Chief Magistrate's Court at Mombasa (ELRC)
CM ELRC No. 303 of 2018
Jurisdiction invoked
First appellate jurisdiction under Article 162(2) of the Constitution read with the Employment and Labour Relations Court Act, 2011 (appeal from magistrates' court in employment dispute)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Bash Hauliers Limited v Wachira (Appeal E073 of 2023) [2024] KEELRC 371 (KLR)", Case Analysis (2024). Mombasa ELRC Appeal (No. not stated in judgment) – appeal from Mombasa CM ELRC No. 303 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/371/eng@2024-02-22

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