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ELRCPartially AllowedCivil Appeal No E084 of 2022· [2024] KEELRC 1262 (KLR)

Mungai v Gitau t/a Naramat Academy (Civil Appeal E084 of 2022) [2024] KEELRC 1262 (KLR)

Employment and Labour Relations Court
16 May 2024
LNLinnet Ndolo
1,405 words in judgment
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The bottom line

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A Kenyan court ruled an employer can't claim a worker deserted duty without proving they tried to contact him, awarding the guard Kshs. 169,000.

What this practically means

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Executive summary

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The Appellant, a security guard employed by the Respondent, sued in the magistrates' court claiming compensation for loss of employment and terminal dues, alleging his employment was verbally terminated after a theft occurred at his workplace while he was away at a funeral with permission. The Respondent maintained that he absconded duty. By a judgment delivered on 9th June 2021, Hon. A.M Obura, CM dismissed the claim, finding the Claimant had not proved termination and that the suit, filed in September 2019 over an alleged 2018 dismissal, was an afterthought. On appeal, Linnet Ndolo, J, applying the first appellate court's retrial role under Selle v Associated Motor Boat Company Ltd, held the trial Magistrate erred in law by treating the filing delay as dispositive since Section 90 of the Employment Act prescribes a three-year limitation period and the claim was within time. The court further held that an employer alleging desertion must prove efforts to reach the employee and put them on notice of termination, citing Godfrey Anjere v Unique Suppliers Limited and Ronald Nyambu Daudi v Tornado Carriers Limited; the Respondent adduced no such evidence and the Appellant's account of verbal termination stood unrebutted. However, the terminal dues claims (overtime, public holidays, house allowance, service gratuity and others) failed for want of specific pleading and proof as special damages. The court set aside the dismissal of the unfair termination claim and awarded twelve months' salary (Kshs. 156,000) plus one month's notice pay (Kshs. 13,000), totalling Kshs. 169,000, with costs of the appeal and the court below to the Appellant.

Key legal issues

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01

Duty of a first appellate court

Holding

A first appeal is by way of retrial; the court re-evaluates the evidence and draws its own conclusions while making allowance for not having seen or heard the witnesses

Reasoning

The court adopted the classic statement in Selle v Associated Motor Boat Company Ltd on the principles governing a first appeal, being neither bound by the trial court's findings of fact nor free to ignore them where the trial court saw and heard witnesses.

p. 2
02

Whether the Appellant was unlawfully terminated or deserted duty

Holding

The Respondent did not prove desertion; the Appellant's claim of verbal termination in violation of due process stood unrebutted, so the termination was unlawful and unfair

Reasoning

The court found the trial Magistrate erred in law by treating the delay in filing as dispositive when the claim was within the statutory limitation period, and failed to apply the settled principles on desertion requiring an employer to demonstrate efforts to reach the employee and put them on notice of termination.

p. 3
03

Terminal dues as special damages

Holding

Claims for house allowance, service gratuity, overtime and similar heads are special damages that must be specifically pleaded and proved; the Appellant failed to meet that standard

Reasoning

The court examined the pleadings and evidence and found the standard of proof for special damages unmet, so the trial court's dismissal of those heads was not disturbed.

p. 3

Legal principles established

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  • An employer alleging desertion of duty must demonstrate efforts made to reach out to the employee and put them on notice that termination on that ground is under consideration
  • Employment claims are governed by the limitation period set by Section 90 of the Employment Act, and delay within that period cannot found a finding that a claim is an afterthought

Court orders

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  1. 1.Order disallowing the Appellant's claim for unlawful and unfair termination set aside and substituted with an award of twelve (12) months' salary in compensation (Kshs. 156,000)
  2. 2.Award of one (1) month's salary in lieu of notice under Section 35(1)(c) of the Employment Act (Kshs. 13,000)
  3. 3.Total award of Kshs. 169,000 in favour of the Appellant
  4. 4.Respondent to meet the costs of the appeal and the proceedings in the court below

Authorities

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Legislation

  • Employment ActSection 90
  • Employment ActSection 31
  • Employment ActSection 35
  • Employment ActSection 35(1)(c)

Cases cited (3)

  • Selle v Associated Motor Boat Company Ltd
    [1968] E.A 123
  • Godfrey Anjere v Unique Suppliers Limited
    [2015] eKLR
  • Ronald Nyambu Daudi v Tornado Carriers Limited
    [2019] eKLR
On appeal from
Magistrates' Court (Employment and Labour relations claim)
Not stated in judgment
Jurisdiction invoked
First appellate jurisdiction over the trial court's decision (Employment and Labour Relations Court)

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, "Mungai v Gitau t/a Naramat Academy (Civil Appeal E084 of 2022) [2024] KEELRC 1262 (KLR)", Case Analysis (2024). Civil Appeal No E084 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1262/eng@2024-05-16

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