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ELRCPartially AllowedEmployment Appeal from Mombasa CMELRC E094 of 2021· [2024] KEELRC 1406 (KLR)

SGA Security Solutions Limited v Mulei (Appeal E136 of 2023) [2024] KEELRC 1406 (KLR)

Employment and Labour Relations Court
23 May 2024
2,920 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that an employee cannot be treated as dismissed for desertion unless the employer formally acts on it and follows due process.

What this practically means

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Executive summary

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This is a first appeal against the judgment of the learned magistrate in Mombasa CMELRC E094 of 2021, in which Titus Mulei was awarded notice pay, leave allowance, overtime and six months' compensation for unfair termination. The appellant employer contended the respondent deserted duty after 30 November 2020 and was never terminated, and that the awards were unjustified. The Court, exercising its mandate to re-evaluate the evidence as a first appellate court, held that desertion is gross misconduct under Section 44(4) of the Employment Act but an employee alleged to have deserted must be called to account under Section 41(2); the employer did not account for the period from 21 October 2020 to 30 November 2020 and did not demonstrate steps taken to address the alleged abandonment. Desertion being unilateral cannot end the contract until the employer acts on it, so the finding of unfair termination, notice pay and compensation stood. However, the Court varied the awards: it applied the higher wage under the contract of 12 November 2020, fixing notice pay at Kshs 23,586.06 and compensation at Kshs 141,516.06; it set aside the awards of leave allowance (leave had been taken and cannot accumulate beyond 18 months under Section 28(4)) and overtime (claim not particularised). The Court also allowed the counterclaim to the extent of Kshs 77,688 for the Alarms Sacco loan, an authorised deduction under Section 19(1)(h), payable from terminal dues. Each party was ordered to bear its own costs for the appeal and the trial court proceedings. The appeal was partially successful.

Key legal issues

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01

Effect of alleged desertion of duty on termination

Holding

The employer did not address the alleged desertion through Section 41(2) processes; the finding of unfair termination could not be faulted

Reasoning

Desertion is gross misconduct under Section 44(4) but an employee alleged to have deserted must be called to account under Section 41(2). The appellant did not account for the period from 21 October 2020 to 30 November 2020, did not file its alleged response to the demand notice, and did not invite the respondent back to work or to show cause. Desertion being unilateral cannot close the contract until the employer acts on it.

p. 4
02

Correct wage for computation of awards

Holding

The higher wage under the 12 November 2020 contract (Kshs 21,068.06 plus Kshs 2,500 accident-free allowance) was applied, yielding notice pay of Kshs 23,586.06 and 6 months' compensation of Kshs 141,516.06

Reasoning

There were conflicting wage figures. The court applied the employer's records as custodian under Section 10(6) and (7) of the Employment Act, then adopted the higher figure under the later contract of 12 November 2020 (Kshs 23,586.60 total) for computing notice pay and compensation.

p. 5
03

Leave and overtime claims on appeal

Holding

The award of leave allowance was set aside as the respondent took his leave when due; the overtime award was set aside for lack of particularisation

Reasoning

Leave application forms for 2019 and 2020 showed the respondent took 26 days' leave annually, and Section 28(4) caps leave accumulation at 18 months. On overtime, the claim was a general allegation without particulars of hours worked, start and exit times, so the respondent failed to discharge the duty of particularising the claim.

p. 6
04

Counterclaim for Sacco loan arrears

Holding

The counterclaim was allowed to the extent of Kshs 77,688, deductible from terminal dues as an authorised deduction under Section 19(1)(h)

Reasoning

The respondent admitted an Alarms Sacco loan of Kshs 77,688 offset from his wages. The employment relationship and loan facility were interlinked; under Section 19(1)(h) an authorised Sacco deduction may be made and at the end of employment the employer is justified in deducting from terminal dues.

p. 6

Legal principles established

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  • Desertion does not itself terminate employment; the employer must act on it and demonstrate steps taken to address the absenteeism
  • The employer is the custodian of work records under Section 10(6) and (7) of the Employment Act and its records are taken as the true position
  • An employer may deduct from terminal dues amounts due under an authorised Sacco loan deduction
  • Discretion to award costs in employment claims must be exercised judicially with reasons

Court orders

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  1. 1.Compensation awarded at Kshs 141,516.06
  2. 2.Notice pay Kshs 23,586.06
  3. 3.The counterclaim is allowed to the extent that the sum of Kshs 77,688 is due for a loan advanced to the respondent through the appellant to Alarms Sacco
  4. 4.Dues under (a) and (b) above to be paid less amounts due in counterclaim
  5. 5.Each party bears its costs for the appeal and proceedings before the trial court

Authorities

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Legislation

  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Sections 35 and 36
  • Employment Act, 2007Section 10(6) and (7)
  • Employment Act, 2007Section 28(4)
  • Employment Act, 2007Section 19(1)(h)
  • Employment and Labour Relations Court Act, 2011Sections 3 and 12(4)

Cases cited (6)

  • Nzuki v Protech Industrial Equipment Limited
    Cause No 1217 of 2018
  • Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co Advocates
    [2013] eKLR
  • Ayub Kombe Ziro v Umoja Rubber Products Limited
    [2022] eKLR
  • James Okeyo v Maskant Flower Limited
    [2015] eKLR
  • Javan Were Mbango v H. Young & Co. (EA) Ltd
    [2012] eKLR
  • Loise Njeri v Devkan Enterprises Limited
    [2020] eKLR
On appeal from
Employment and Labour Relations Court at Mombasa (trial, CMELRC)
Mombasa CMELRC E094 of 2021
Jurisdiction invoked
First appellate jurisdiction over CMELRC E094 of 2021 under the Employment and Labour Relations Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "SGA Security Solutions Limited v Mulei (Appeal E136 of 2023) [2024] KEELRC 1406 (KLR)", Case Analysis (2024). Employment Appeal from Mombasa CMELRC E094 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1406/eng@2024-05-23

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