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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 395 (KLR)

Mwaidza v Babito General Contractor & Suppliers Limited (Appeal E053 of 2023) [2024] KEELRC 395 (KLR)

Employment and Labour Relations Court of Kenya
22 February 2024
2,275 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed employers cannot just claim an employee deserted duty — they must prove they tried to contact the worker and followed legal termination steps.

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 dismissal by the learned magistrate of a loader's claim in Mombasa CM ELRC E118 of 2020 (judgment of 18 May 2023). The appellant, employed from 1 July 2017 at Kshs. 8,000 per month, claimed his supervisor terminated his employment on 10 October 2020 without notice or reasons; the respondent said he absconded duty on 11 October 2020. The trial court dismissed the claim on the basis of desertion. On appeal, the court held that the burden of proving desertion rests on the employer, who must demonstrate efforts to reach the employee, issue notice, and report the dismissal to the labour officer under Section 18(5)(b) of the Employment Act. Absent such proof, the employee's word must be believed, and the termination was unfair for lack of notice (Section 35), hearing (Section 41) and valid reasons (Section 43). The court further held the trial court erred in failing to assess the terminal claims, then assessed them itself: house allowances of Kshs. 101,025.45 computed on Wage Order minimums (an agreed wage below the legal minimum being invalid to that extent), underpayments of Kshs. 275,879, notice pay of Kshs. 18,880.57, one month's compensation of Kshs. 18,880.57 (reduced for the alleged misconduct of overloading the vehicle under Section 45(5)(b)), and a certificate of service. Service pay was refused as the respondent proved NSSF compliance, and pay for 10 days worked and leave/rest day/public holiday claims were refused as compensated by periodic payments of Kshs. 10,000. The trial judgment was set aside; the appellant got costs of the appeal, with each party bearing own costs in the lower court.

Key legal issues

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01

Whether the appellant deserted duty or was unfairly terminated

Holding

The finding of desertion was unjustified; the employer produced no records of efforts to reach the employee or of due process, so the employee's word prevails and the termination was unfair.

Reasoning

Where an employer alleges desertion, the burden lies on the employer, and desertion once proved amounts to gross misconduct under Section 44(4)(a). The employer must proactively issue notice to the employee, notice of summary dismissal where necessary, and report the dismissal to the Labour Officer under Section 18(5)(b). Without proof of such steps, the employee's account must be believed.

p. 3
02

Whether the terminal claims (house allowances, underpayments, leave, certificate of service) should have been assessed

Holding

The trial court erred in failing to assess these claims; the court reassessed them itself, awarding house allowance, underpayments, notice pay, compensation and a certificate of service.

Reasoning

Section 18(5)(a) requires the employer to pay all wages and allowances due upon termination, irrespective of the reason for termination. Wage Orders regulate the minimum wage, so an agreed consolidated wage below the statutory minimum is invalid to that extent, and the house allowance and underpayments were computed from the Wage Order rates.

p. 3
03

Quantum of compensation for unfair termination

Holding

One month's compensation at the last gross wage of Kshs. 18,880.57 was appropriate, taking into account the alleged misconduct of overloading the vehicle under Section 45(5)(b).

Reasoning

Although the termination was unfair for lack of notice, hearing and valid reasons, the respondent's evidence that the appellant overloaded his vehicle with charcoal is an aspect of misconduct that the court should weigh under Section 45(5)(b) in fixing compensation.

p. 5

Legal principles established

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  • The burden of proving desertion of duty rests on the employer, who must show efforts to reach the employee and notice that termination is under consideration
  • An offer of wages below the statutory minimum is invalid to the extent that it falls below the legal minimum, even if accepted by the employee
  • Upon termination, the employer must pay all wages and allowances earned, and must report a dismissal to the labour officer within seven days

Court orders

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  1. 1.Judgment in Mombasa CM ELRC E118 of 2020 set aside
  2. 2.Declaration that there was unfair termination of the appellant's employment by the respondent
  3. 3.Compensation awarded at Kshs. 18,880.57
  4. 4.Notice pay awarded at Kshs. 18,880.57
  5. 5.House allowance awarded at Kshs. 101,025.45
  6. 6.Underpayments assessed at Kshs. 275,879
  7. 7.Certificate of Service to issue in accordance with Section 51 of the Employment Act, 2007
  8. 8.Appellant awarded costs of the appeal; each party to bear own costs of the lower court proceedings

Authorities

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Legislation

  • Employment Act, 2007Section 35
  • Employment Act, 2007Section 35(5)
  • Employment Act, 2007Sections 35 and 49(2)
  • Employment Act, 2007Sections 45 and 49
  • Employment Act, 2007Section 45(5)(b)
  • Employment Act, 2007Section 44(4)(a)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 51
  • Employment Act, 2007Section 18(5)(a)
  • Employment Act, 2007Section 18(5)(b)
  • Employment Act, 2007Section 28
  • Wage OrdersMinimum wage for loaders, Mombasa

Cases cited (5)

  • Chrispine Onguso Okinyi v Devki Steel Mills Limited
    [2018] eKLR
  • Paul Mwakio v Reliable Freight Services Limited
    [2022] eKLR
  • Meshack Kii Ikulume v Prime Fuels Kenya Limited
    [2013] eKLR
  • Ronald Nyambu Daudi v Tornado Carriers Limited
    [2019] eKLR
  • Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited
    [2016] eKLR
On appeal from
Magistrates' Court (ELRC), Mombasa
Mombasa CM ELRC E118 of 2020
Jurisdiction invoked
First appeal under the Employment Act and applicable civil procedure provisions (first appellate court re-evaluating evidence); no specific article cited

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, "Mwaidza v Babito General Contractor & Suppliers Limited (Appeal E053 of 2023) [2024] KEELRC 395 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/395/eng@2024-02-22

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