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ELRCPartially AllowedAppeal No. E034 of 2023· [2024] KEELRC 1392 (KLR)

Obonyo v Kibos Sugar & Allied Industries (Appeal E034 of 2023) [2024] KEELRC 1392 (KLR)

High Court of Kenya
13 June 2024
CBC. N. Baari
1,962 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan employers cannot dismiss workers for absconding without proving they tried to contact the employee first.

What this practically means

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Executive summary

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Charles Odhiambo Obonyo sued Kibos Sugar & Allied Industries before the Kisumu Chief Magistrate's Court for unfair termination, seeking pay in lieu of notice and underpayments totalling Kshs 356,208/=. On 24th May 2023 the trial court dismissed his claim with costs. He appealed, contending the magistrate failed to appreciate the totality of the evidence and that the employer never justified the termination for absconding duty. On appeal, the High Court framed two issues: whether the termination was unfair and whether the Appellant was entitled to remedies. Applying the settled principles on the role of a first appellate court, the court found the disciplinary process the Appellant underwent concerned cutting a conveyor belt and ended with a warning; no show cause letter was issued on abscondment, no certificate of postage of the termination letter was produced, and the alleged calls to the employee were unproven. Relying on authorities requiring an employer alleging abscondment to demonstrate reasonable efforts to contact the employee, the court held the termination substantively and procedurally unfair and set aside the trial court's judgment. On remedies, the court awarded a declaration of unfair termination, pay in lieu of notice of Kshs 17,500/=, and compensation of ten months' salary at Kshs 175,000/=, having regard to the capping under Section 49(4) of the Employment Act and the Appellant's length of service. The underpayments claim was abandoned by the Appellant and allowed to lapse. The Respondent was ordered to bear costs of both the lower court suit and the appeal.

Key legal issues

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01

Whether the Appellant's termination for absconding duty was procedurally and substantively fair

Holding

The termination was unfair; the Appellant was never charged with or heard on abscondment, and the Respondent proved no efforts to reach him

Reasoning

The disciplinary process the Appellant underwent related to cutting a conveyor belt and ended in a warning with instructions to resume duty. No show cause letter on abscondment was issued, no certificate of postage of the termination letter was produced, and the alleged calls to the employee were unproven. Following Sections 41 and 47(5) of the Employment Act and the cited authorities, dismissal for absconding must be preceded by evidence of attempts to contact the employee; the Respondent failed this, rendering the termination unfair.

p. 4
02

Whether the Appellant is entitled to remedies for unfair termination

Holding

Entitled to a declaration of unfair termination, pay in lieu of notice, and 10 months' salary as compensation; underpayments claim abandoned

Reasoning

A finding of unfair termination entitles the employee to compensation under Sections 49 and 50 of the Employment Act, subject to the statutory capping in Section 49(4). Considering the circumstances of termination and the Appellant's five years of service, the court deemed 10 months' salary sufficient compensation. Pay in lieu of notice was merited and awarded as prayed, while the underpayments claim lapsed on abandonment.

p. 5

Legal principles established

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  • An employer alleging abscondment must demonstrate reasonable efforts to contact the employee and issue a show cause letter before termination; failure renders the termination unfair.
  • A first appellate court can only interfere with a trial decision where it is based on no evidence, a misapprehension of the evidence, or wrong principles.

Court orders

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  1. 1.A declaration that the Appellant was unfairly terminated.
  2. 2.An award of pay in lieu of notice at Kshs 17,500/=
  3. 3.10 months' salary as compensation for the unfair termination at Kshs 175,000/=
  4. 4.The Respondent shall bear the costs of the suit both at the lower court and for this appeal.

Authorities

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Legislation

  • Employment ActSection 74
  • Evidence ActSection 107
  • Employment ActSection 41
  • Employment ActSection 47(5)
  • Employment Act, 2007Sections 49 and 50
  • Employment ActSection 49(4)

Cases cited (7)

  • CMC Aviation Limited v Mohammed Noor
    Civil Appeal No. 199 of 2013
  • Selle & another v Associated Motorboat Co Ltd & others
    [1968]
  • Ramji Ratna and Company Limited v Wood Products (Kenya Limited)
    Civil Appeal No. 117 of 2001
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Limited
    [2013] eKLR
  • Joseph Nzioka v Smart Coatings Limited
    [2017] eKLR
  • Simon Mbithi Mbane v Inter Security Services Ltd
    [2018] eKLR
  • Ndugu Transport Company Limited v Onyango
    (Civil Appeal 24 of 2019) [2023] KECA 1249 (KLR)
On appeal from
Kisumu Chief Magistrate's Court
Jurisdiction invoked
First appellate jurisdiction over the memorandum of appeal from the Kisumu Chief Magistrate's Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Obonyo v Kibos Sugar & Allied Industries (Appeal E034 of 2023) [2024] KEELRC 1392 (KLR)", Case Analysis (2024). Appeal No. E034 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1392/eng@2024-06-13

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