Isenze v Luvaso (Appeal E067 of 2022) [2024] KEELRC 1403 (KLR)
The bottom line
#A Kenyan employer who claims a worker absconded must prove they tried to trace them and followed notice procedures, or the dismissal is unfair.
What this practically means
#Executive summary
#Key legal issues
#Amendment of pleadings without leave
Amendment allowed under Rule 14 of the ELRC Procedure Rules, 2016 before close of pleadings; the intervening period justified the amendment
The claim was filed on 5 April 2018 and nothing substantive occurred until June 2021; no hearing directions issued until November 2021, so pleadings had not closed and the amendment was permissible.
Unfair termination where employee allegedly absconded
Finding of unfair termination upheld; employer failed to follow Sections 41(2), 44(3) and (4) procedure for gross misconduct/desertion
The employer did not issue notice to the employee to address the alleged misconduct, nor report the dismissal to a labour officer under Section 18(5)(b), leaving the employee at large; termination was therefore unfair for want of due process.
Compensation of 8 months
Award reduced to 1 month (Kshs 8,000) because the trial court gave no reasons for 8 months as required by Section 45(5)
Maximum or substantial compensation must be justified by reasons; the employee's conduct and work record must be considered, citing Kenya Broadcasting Corporation v Wakio and Ol Pejeta Ranching. Five years' service did not justify 8 months without rationale.
Service pay
Service pay of Kshs 16,000 upheld; employer admitted non-remittance of NSSF, and under Section 35(5) and (6) service pay is due
Admission that NSSF was not paid disentitles the employer from relying on the statutory exclusion; the claimed Kshs 16,000 for 5 years' service was appropriate.
Underpayments
Award varied and recomputed at Kshs 142,382 based on applicable minimum wage orders for a Mombasa house help
Applying successive wage orders (Kshs 9,780.95, then 10,954.70, then 12,926.55) against the paid Kshs 8,000, less no house allowance since the respondent was accommodated; employer offered no work records to challenge payments.
Legal principles established
#- An employee cannot terminate their own employment by walking out; the employer bears the legal duty under Sections 44(3), (4) and 41(2) of the Employment Act to issue notice to address alleged desertion
- The employer must demonstrate efforts taken to trace an employee said to have absconded duty
- Compensation awards must be justified with reasons under Section 45(5) of the Employment Act
Court orders
#- 1.Compensation Kshs 8,000
- 2.Notice pay Kshs 8,000
- 3.Underpayments Kshs 142,382
- 4.Service pay Kshs 16,000
- 5.For this appeal, each party is to pay its own costs; costs before the lower court as awarded
- On appeal from
- Magistrates' Court (ELRC), Mombasa
- Mombasa CMELRC No. 1084 of 2019
- Jurisdiction invoked
- First appeal from the subordinate court (Employment and Labour Relations Court (Procedure) Rules, 2016; Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isenze v Luvaso (Appeal E067 of 2022) [2024] KEELRC 1403 (KLR)", Case Analysis (2024). Mombasa CMELRC No. 1084 of 2019 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1403/eng@2024-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.