Mwaidza v Babito General Contractor & Suppliers Limited (Appeal E053 of 2023) [2024] KEELRC 395 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the appellant deserted duty or was unfairly terminated
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.
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.
Whether the terminal claims (house allowances, underpayments, leave, certificate of service) should have been assessed
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.
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.
Quantum of compensation for unfair termination
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).
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.
Legal principles established
#- 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
#- 1.Judgment in Mombasa CM ELRC E118 of 2020 set aside
- 2.Declaration that there was unfair termination of the appellant's employment by the respondent
- 3.Compensation awarded at Kshs. 18,880.57
- 4.Notice pay awarded at Kshs. 18,880.57
- 5.House allowance awarded at Kshs. 101,025.45
- 6.Underpayments assessed at Kshs. 275,879
- 7.Certificate of Service to issue in accordance with Section 51 of the Employment Act, 2007
- 8.Appellant awarded costs of the appeal; each party to bear own costs of the lower court proceedings
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.