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ELRCPartially AllowedAppeal No E019 of 2022· [2024] KEELRC 1463 (KLR)

Singh & another v Ndeda (Appeal E019 of 2022) [2024] KEELRC 1463 (KLR)

Employment and Labour Relations Court
13 June 2024
2,821 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that an employee who walks off the job without telling the employer cannot later win an unfair termination claim.

What this practically means

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Executive summary

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The Respondent, Jane Adisa Ndeda, had sued the Appellants before the Kisumu Chief Magistrate's Court for unfair termination and non-payment of terminal dues, and on 8th June 2022 was awarded Kshs 466,928.20/-. The Appellants appealed, contending they were not privy to the employment contract, which they said was with their deceased father, Malkit Singh Pandal, and that the claim failed on frustration and want of proof. The court framed three issues: whether an employment relationship existed, whether the termination was fair, and whether the remedies were payable. On the first issue, the court upheld the Trial Court's finding of an employer-employee relationship, noting that the Appellants' own pleadings contained details only an employer would know and that the 1st Appellant admitted the Respondent was paid for services at a house he shared with the deceased. On fairness, however, the court found the Respondent had left work in May 2017 for treatment and only made contact in early 2018, an unexplained absence of over six months amounting to desertion. Since Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee, the Respondent failed to discharge it. Compensation and notice pay were therefore set aside. The underpayments claim also failed for want of an exact separation date to test compliance with the 12-month limitation under Section 90. The appeal succeeded; the Trial Court's judgment was set aside and the claim dismissed, with no orders on costs. Judgment was delivered at Kisumu by Christine N. Baari, Judge, on 13th June 2024.

Key legal issues

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01

Whether an employer-employee relationship existed between the Respondent and the Appellants

Holding

Yes - the record demonstrated an employer-employee relationship despite the Appellants' denial, upheld the Trial Court's finding

Reasoning

The Appellants' own pleadings described the Respondent's job description, working hours and separation date - details only an employer would know. The 1st Appellant admitted living with the deceased father in the same house where the Respondent worked and that she was paid for her services. The court found no reason to interfere with the Trial Court's finding.

p. 5
02

Whether the Respondent's termination was fair

Holding

No unfair termination was proved - the Respondent deserted duty for over six months without communication

Reasoning

The Respondent admitted leaving employment in May 2017 to seek treatment and only contacted the Appellants in early 2018. Under Section 47(5) of the Employment Act the burden of proving unfair termination lies on the employee. The unexplained absence and lack of communication amounted to desertion, so the employee failed to discharge the burden.

p. 6
03

Whether the Respondent was entitled to the remedies awarded by the Trial Court

Holding

No - compensation, notice pay and underpayments claims all failed

Reasoning

Having found no unfair termination, compensation and notice pay became untenable. The underpayments claim failed because the exact date of separation was not established, making it impossible to verify compliance with the 12-month limitation period for continuing injuries under Section 90 of the Employment Act.

p. 7

Legal principles established

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  • Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee
  • A first appellate court must re-evaluate, re-assess and re-analyse the record and arrive at its own conclusions
  • An employee who unilaterally absents herself from work without communicating with the employer cannot claim unfair termination

Court orders

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  1. 1.The finding of the Trial Court that the Respondent was unfairly terminated is set aside
  2. 2.The award of compensation for unfair termination is set aside
  3. 3.The award of salary in lieu of notice is not payable
  4. 4.The claim for underpayments remains unproven and is dismissed
  5. 5.The judgment of the Trial Court is set aside and substituted with a dismissal of the claim with no orders on costs

Authorities

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Legislation

  • Employment ActSection 2 (definitions of employee and employer)
  • Employment ActSection 40 (redundancy)
  • Employment ActSection 47(5)
  • Employment ActSection 49
  • Employment ActSection 90
  • Regulation of WagesNot specified

Cases cited (8)

  • Kenya Airways Limited v Satwant Singh Flora
    [2013] eKLR
  • Stephen Wasike & Another v Security Express Ltd
    [2006] eKLR
  • Kenya Revenue Authority & 2 others v Darasa Investments Limited
    [2018] eKLR
  • Rogoli Ole Manadiegi v General Cargo Services Limited
    (2016) eKLR
  • Lucy Nyandia Mwangi v Mathenge and Muchemi Advocates
    [2013] eKLR
  • Kennedy Moss Cheptum v Geothermal Development Company
    [2019] eKLR
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] e KLR
  • Javan Kisoi Mulwa v SAA Interstate Traders (K) Ltd
    [2018] eKLR
On appeal from
Kisumu Chief Magistrate's Court
Not stated
Jurisdiction invoked
First appellate jurisdiction over the trial court's judgment (memorandum of appeal dated 7th July, 2022)

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, "Singh & another v Ndeda (Appeal E019 of 2022) [2024] KEELRC 1463 (KLR)", Case Analysis (2024). Appeal No E019 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1463/eng@2024-06-13

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