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ELRCPartially AllowedMombasa CMELRC No. E282 of 2022 (appeal therefrom)· [2024] KEELRC 917 (KLR)

Owudu v Digital Sanitation Services Limited (Appeal E109 of 2023) [2024] KEELRC 917 (KLR)

Employment and Labour Relations Court
18 April 2024
MMM. Mbarũ
3,128 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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In Kenya, an employee who absconds hasn't resigned — employers must still follow proper termination procedures, or face an unfair termination finding.

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 (M. Mbarũ J) from the judgment in Mombasa CMELRC No. E282 of 2022 delivered on 19 September 2023, dismissing the appellant's claims against his employer. The appellant, a driver employed from October 2016, claimed unfair termination and terminal dues after leaving on 9 May 2022 amid allegations of fraudulent fuel transactions. The respondent contended he absconded after refusing a notice to show cause and leave forms. The trial court found he had declined the disciplinary process and absconded, and dismissed the claim with costs. On appeal, the court re-evaluated the record and held that an employee cannot terminate his own employment by alleged abscondment; the legal duty to end employment rests on the employer, which must issue termination or summary dismissal notice to the employee's last known address under Section 10(2) of the Employment Act and copy the Labour Officer. The 12 May 2022 notice sent to the appellant's phone number did not satisfy this requirement, and the respondent failed its legal duty, rendering the termination unfair. However, taking into account the appellant's warnings and alleged misconduct and the uncontroverted police report under Section 45(5), compensation was assessed at zero. Leave pay was refused as the appellant had just taken leave and could not claim beyond 18 months; service pay was refused as the NSSF statement proved compliance with Section 35(5); house allowance underpayment of Ksh.12,202 was awarded per the applicable Wage Orders; and a certificate of service was found due. The appeal was declared partially successful with each party bearing its own costs for the appeal and the lower court proceedings.

Key legal issues

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01

Whether the appellant's employment was lawfully terminated upon alleged abscondment

Holding

The termination was unfair; the employer failed its legal duty by not issuing a termination or summary dismissal notice addressed to the employee's last known address and copied to the Labour Officer

Reasoning

The court held that an employee does not terminate his own employment by absconding. The employer must issue notice requiring the employee to account, and where he persists, issue termination or summary dismissal notice through the last known address, or deposit terminal dues with the Labour Officer under Section 18(5)(b). The 12 May 2022 notice was sent to a phone number, not the contractual address, and merely urged the appellant to confirm whether he had resigned. The appellant had not received a hearing under Section 41(2).

p. 5
02

Whether compensation for unfair termination was payable

Holding

Unfair termination was found, but zero compensation awarded because of the appellant's record of warnings and alleged misconduct

Reasoning

Under Section 45(5) of the Employment Act, the court must consider the employee's work record. The record showed warnings and alleged fraudulent misconduct, supported by an uncontroverted police report. Awarding compensation would amount to rewarding the misconduct, so zero compensation was deemed appropriate despite the finding of unfair termination.

p. 5
03

Whether the appellant was underpaid house allowance

Holding

Partially allowed; Ksh.12,202 awarded based on applicable Wage Orders, prorated for May 2022

Reasoning

The court applied the applicable Wage Orders for drivers in Mombasa, computing the 15% house allowance on minimum basic wages for the periods May 2018 to April 2022 and October 2016 to April 2017, prorating for the five days worked in May 2022, and finding that for periods when the Ksh.20,000 wage exceeded the minimum, it already compensated for house allowance.

p. 5
04

Whether service pay was due

Holding

Not due, as the NSSF statement proved compliance with Section 35(5) of the Employment Act

Reasoning

Service pay under the Act is payable only where the employer has not complied with the statutory social security obligations. The respondent filed the NSSF statement as part of its work records, which the court found to be sufficient proof of compliance, extinguishing the service pay claim.

p. 6
05

Whether a certificate of service was due

Holding

Yes, a certificate of service is due at the end of employment

Reasoning

The court agreed with the appellant's submission that a certificate of service is due at the end of employment and that best practice is for the employee to clear any liabilities before issuance. This formed part of the final orders.

p. 6

Legal principles established

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  • An employee cannot terminate his own employment by alleged abscondment; the legal duty to end the employment relationship lies with the employer, who must issue termination or summary dismissal notice in accordance with the law
  • Where an employer alleges the employee has absconded or deserted duty, it must produce evidence of reasonable steps taken to contact the employee and to bring him to account
  • Notices intended to end employment must be sent to the employee's last known physical or postal address as defined under Section 10(2) of the Employment Act; a phone number does not satisfy the law

Court orders

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  1. 1.Finding that the termination of the appellant's employment was unfair
  2. 2.Compensation for unfair termination awarded at zero (0) amount
  3. 3.House allowance underpayment awarded at Ksh.12,202
  4. 4.Certificate of service to be issued to the appellant
  5. 5.Each party to bear its own costs for the appeal and the proceedings in Mombasa CMELRC E282 of 2022

Authorities

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Legislation

  • Employment Act, 2007Section 44(4)(g)
  • Employment Act, 2007Section 35(5) and (6)
  • Employment Act, 2007Section 41 and 41(2)
  • Employment Act, 2007Section 45 and 45(5)
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 74
  • Employment Act, 2007Section 18(5)(b)
  • Employment Act, 2007Section 10(2)
  • Employment Act, 2007Section 28(4)
  • Employment Act, 2007Section 44(4)(e)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 28(2)

Cases cited (10)

  • Kosgei v Metkei Multi-Purpose Co. Ltd
    Civil Appeal No.95 of 2017
  • Titus Musau Ndivau & Another v Waridi Limited
    Cause No.903 of 2012 (Nairobi)
  • Javan Kisoi Mulwa v SAA Interstate Traders (K) Ltd
    [2018] eKLR
  • Stanley Omwoyo Onchweri v BOM Nakuru YMCA Secondary School
    [2015] eKLR
  • Mackenzie Maritime (E.A) Limited v Moses Ochola Juma
    ELRCA No. E073 of 2022
  • Ngunda v Ready Consultancy Limited
    Civil Appeal No.128 of 2019
  • Chief Justice & Another v Khaemba
    Civil Appeal No.522 of 2019
  • Richard Maingi v Wells Fargo Limited
    [2017] eKLR
  • Chispine Onguso Okinyi v Devki Steel Mills Limited
    [2018] eKLR
  • Albanus Mbuithi Mutiso v Fresh Breeze Limited
    Cause No.851 of 2017
On appeal from
Mombasa Magistrates' Court (CMELRC)
Mombasa CMELRC No. E282 of 2022
Jurisdiction invoked
First appeal from the magistrates' court to the Employment and Labour Relations Court (ELRC)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (14)

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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, "Owudu v Digital Sanitation Services Limited (Appeal E109 of 2023) [2024] KEELRC 917 (KLR)", Case Analysis (2024). Mombasa CMELRC No. E282 of 2022 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/917/eng@2024-04-18

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