Singh & another v Ndeda (Appeal E019 of 2022) [2024] KEELRC 1463 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether an employer-employee relationship existed between the Respondent and the Appellants
Yes - the record demonstrated an employer-employee relationship despite the Appellants' denial, upheld the Trial Court's finding
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.
Whether the Respondent's termination was fair
No unfair termination was proved - the Respondent deserted duty for over six months without communication
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.
Whether the Respondent was entitled to the remedies awarded by the Trial Court
No - compensation, notice pay and underpayments claims all failed
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.
Legal principles established
#- 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
#- 1.The finding of the Trial Court that the Respondent was unfairly terminated is set aside
- 2.The award of compensation for unfair termination is set aside
- 3.The award of salary in lieu of notice is not payable
- 4.The claim for underpayments remains unproven and is dismissed
- 5.The judgment of the Trial Court is set aside and substituted with a dismissal of the claim with no orders on costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.