Golden Biscuits (1985) Limited v Otieno (Appeal E228 of 2022) [2024] KEELRC 1222 (KLR)
The bottom line
#Kenya's Employment Court ruled an employee who abandons his job loses salary claims, and courts cannot award money a worker never asked for.
What this practically means
#Executive summary
#Key legal issues
#Whether a trial court may determine un-pleaded issues or grant unclaimed reliefs
No. The trial Magistrate erred in law in finding the Claimant was still an employee and awarding salaries from 2018 to 2022 when that relief was never pleaded or sought. The only remedy available was to dismiss the suit.
The pleadings framed the dispute as whether the Claimant's employment was unlawfully terminated, and the reliefs sought were notice pay, damages and leave. The award of accumulated salary rested on a finding of continued employment that no party pleaded or prayed for. On a first appeal the court re-evaluated the evidence and found the finding was against the weight of evidence, warranting substitution with a dismissal of the suit.
Whether an employee who absents himself from work without lawful cause remains entitled to salary
No. Absence from the workplace without leave or lawful cause amounts to gross misconduct justifying summary dismissal under section 44(4)(a) of the Employment Act, and no employment relationship subsisted to found an award of salary or mediation.
The trial court itself found the Claimant failed to attend the disciplinary meeting and was deemed to have deserted his employment. Under section 44(4)(a), absence without leave or other lawful cause constitutes gross misconduct justifying summary dismissal. The court therefore found lawful cause for dismissal and no subsisting employment relationship, negating both the salary award and the referral to mediation.
Legal principles established
#- A court cannot grant a remedy that was not pleaded or sought by a party
- On a first appeal, the court must re-evaluate the evidence and draw its own conclusions while making allowance for not having seen or heard the witnesses
Court orders
#- 1.Judgment and Decree of the Learned Trial Magistrate vacated and substituted with a Judgment dismissing the entire suit CMEL No. 38 of 2019 – Julius Ochieng Otieno v Golden Biscuits [1985] Limited with no order as to costs
- 2.The reference to mediation vacated
- 3.Appeal allowed with no order as to costs
- On appeal from
- Principal Magistrate's Court
- CMEL No. 38 of 2019 (Julius Ochieng Otieno v Golden Biscuits [1985] Limited)
- Jurisdiction invoked
- First appeal under the Employment and Labour Relations Court's appellate jurisdiction from the trial Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Golden Biscuits (1985) Limited v Otieno (Appeal E228 of 2022) [2024] KEELRC 1222 (KLR)", Case Analysis (2024). ELRC Appeal from CMEL No. 38 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1222/eng@2024-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.