Ndung’u v E.D.G & Atelier Limited (Cause E937 of 2022) [2024] KEELRC 963 (KLR)
The bottom line
#An employer claiming an employee deserted or worked on commission must prove it with evidence, or the full unpaid salary becomes payable.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant proceeded on unpaid leave or deserted the workplace
The Respondent failed to prove either unpaid leave or desertion.
RWI admitted he had no evidence of the alleged phone call requesting unpaid leave or its terms. The attendance register did not show days present or absent given COVID-19 remote working, and the allegation of forged signatures lacked supportive evidence. No evidence showed contact with the Claimant during the alleged desertion. Applying Sections 107(1) and 109 of the Evidence Act, the court found the Respondent had not discharged the burden of proof.
Whether the terms of employment changed to commission-based after December 2021
The Respondent failed to establish any variation of terms.
Neither RWI's written statement nor oral testimony referenced a change in terms of employment; no evidence of a meeting or discussion varying terms was adduced. Mpesa statements showed regular payments from persons the Respondent did not deny were its employees. The court held the Respondent had failed to establish that the Claimant's terms changed after December 2021.
Entitlement to outstanding salary arrears
Outstanding salary of Kshs.1,561,500.00 awarded.
The Respondent's Finance Department admitted by email that outstanding dues existed. Section 17(1) of the Employment Act obliges an employer to pay the entire amount of wages earned. Having failed to prove unpaid leave, desertion, or full payment of salary for March 2021 to September 2022, and adducing no evidence to controvert the amount claimed, the Respondent was held liable for the full sum claimed.
Pay in lieu of leave and general damages
Both prayers declined for want of evidence.
Neither the Claimant's written statement nor oral evidence showed pending leave days or their number, so the leave claim lacked particulars and proof. Similarly, no evidence established an entitlement to general damages in an employment contract, and the claim for constructive dismissal was neither pleaded nor proved, the Claimant having confirmed she resigned voluntarily.
Legal principles established
#- An employer who pleads desertion must adduce evidence of steps taken to ascertain the employee's whereabouts and/or issue a notice to show cause.
- He who alleges must prove, per Section 107(1) of the Evidence Act.
- An employer must pay the entire amount of wages earned by an employee, per Section 17(1) of the Employment Act.
Court orders
#- 1.Judgment entered in favour of the Claimant against the Respondent in respect of the outstanding salary, Kshs.1,561,500.00.
- 2.Each party to bear their own costs.
- Jurisdiction invoked
- Original employment and labour relations jurisdiction (Employment Act, 2007; Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndung’u v E.D.G & Atelier Limited (Cause E937 of 2022) [2024] KEELRC 963 (KLR)", Case Analysis (2024). Cause No E937 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/963/eng@2024-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.