SGA Security Solutions Limited v Mulei (Appeal E136 of 2023) [2024] KEELRC 1406 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Effect of alleged desertion of duty on termination
The employer did not address the alleged desertion through Section 41(2) processes; the finding of unfair termination could not be faulted
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.
Correct wage for computation of awards
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
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.
Leave and overtime claims on appeal
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
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.
Counterclaim for Sacco loan arrears
The counterclaim was allowed to the extent of Kshs 77,688, deductible from terminal dues as an authorised deduction under Section 19(1)(h)
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.
Legal principles established
#- 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
#- 1.Compensation awarded at Kshs 141,516.06
- 2.Notice pay Kshs 23,586.06
- 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.Dues under (a) and (b) above to be paid less amounts due in counterclaim
- 5.Each party bears its costs for the appeal and proceedings before the trial court
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Aron v Bokhol Transporters Limited (Appeal E185 of 2024) [2025] KEELRC 805 (KLR)[2025] KEELRC 805 (KLR)13 Mar 2025applied
Cite this brief
#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.