Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMalindi CM ELRC Appeal (from Malindi CM ELRC No. 28 of 2022)· [2024] KEELRC 1489 (KLR)

Yaa v Willis (Appeal E011 of 2023) [2024] KEELRC 1489 (KLR)

Employment and Labour Relations Court
2 February 2024
MMM. Mbarũ
2,324 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that even when a worker abandons their job, the employer must still formally terminate and pay all dues earned.

What this practically means

#

Executive summary

#
This was a first appeal from the dismissal in Malindi CM ELRC No. 28 of 2022 of a claim by a house keeper/general labourer against her employer in Watamu. The appellant claimed notice pay, house allowance underpayments, 11 days' wages for September 2022, service pay, unremitted NSSF/NHIF dues, a Certificate of Service and costs, alleging she was orally dismissed when she sought travel costs to move to the respondent's new house. The trial court found she deserted duty and dismissed the whole claim. On appeal, the court, guided by Mursal & another v Manese, re-evaluated the evidence and found an employment relationship existed on oral terms. It held that although the appellant abandoned work, the respondent's failure to issue notice and effect summary dismissal under section 44(4)(a) of the Employment Act rendered the termination unfair, citing Milano Electronics Limited v Dickson Nyasi Muhaso. It also faulted the trial court for a blanket dismissal without assessing terminal dues. The court awarded notice pay of Kshs. 12,330, underpayment of Kshs. 1,320 from May 2022, and Kshs. 4,521 for 11 days worked, plus a Certificate of Service under section 51. It refused compensation and costs due to the appellant's conduct in absconding, and declined house allowance, service pay and the 2018 NSSF/NHIF claim. Each party was ordered to bear its own costs. The appeal was allowed in part and the trial judgment reviewed accordingly.

Key legal issues

#
01

Fairness of termination where employee abandons work

Holding

Termination was unfair because the employer failed to act on the abandonment through notice and summary dismissal

Reasoning

The court found the appellant abandoned work after 12 September 2022, but the respondent took no steps to close the contract lawfully. Citing Milano Electronics Ltd v Dickson Nyasi Muhaso, desertion cannot close a contract until the employer acts on it; failure to issue notice exposes the employer to an unfair termination claim.

p. 4
02

Burden of proof of employment terms absent a written contract

Holding

In the absence of written terms, the employer is exposed and the employee's account is accepted

Reasoning

Sections 7, 8 and 10(1) of the Employment Act allow oral commencement but require written particulars within two months. Without a written contract, the employer cannot dispute the employee's statement of terms.

p. 3
03

Assessment of terminal dues despite unfair termination finding

Holding

Notice pay, underpayment from May 2022, and 11 days' wages were awarded; house allowance, service pay and compensation were refused

Reasoning

The trial court erred in a blanket dismissal without assessing each claim. Applying section 18(4), dues earned to the date of dismissal must be paid. Underpayment computed at Kshs. 11 per day from May 2022; culpability under section 45(5)(b) defeated compensation and costs.

p. 4

Legal principles established

#
  • An employee who abandons work does not themselves terminate employment; the employer must issue notice and effect summary dismissal under section 44 of the Employment Act
  • Where there is no written contract of employment, the employer bears the burden of proving terms and the court must believe the employee
  • Whatever the reason for termination, dues earned up to the date of dismissal must be assessed and paid

Court orders

#
  1. 1.Notice pay of Kshs. 12,330
  2. 2.Underpayment of Kshs. 1,320
  3. 3.Payment for 11 days worked in September 2022 of Kshs. 4,521
  4. 4.The Certificate of Service shall be issued in accordance with Section 51 of the Employment Act, 2007
  5. 5.The dues above shall be paid less statutory deductions
  6. 6.Each party to bear own costs

Authorities

#

Legislation

  • Employment Act, 2007Sections 7, 8, 9, 10(1), 18(4), 35, 35(5) and (6), 41, 44(4), 44(4)(a), 45(5)(b), 51
  • General Wage OrdersMinimum wage for general worker in Malindi

Cases cited (7)

  • Joseph Nzioka v Smart Coatings Limited
    [2017] eKLR
  • Standard Groups Limited v Jenny Luesby
    [2018] eKLR
  • Nisha Nileshbhai Bhavsar v Kensalt Limited
    [2022] eKLR
  • Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa)
    (Civil Appeal E20 of 2021) [2022] eKLR
  • Muikamba v Radio Africa Group Limited
    (Cause E245 of 2021) [2023] KEELRC 1251 (KLR) (30 May 2023)
  • Agatha Bugosi Said v Vegpro Kenya Limited
    [2014] eKLR
  • Milano Electronics Limited v Dickson Nyasi Muhaso
    [2021] eKLR
On appeal from
Malindi Chief Magistrate's Court (ELRC)
CM ELRC No. 28 of 2022
Jurisdiction invoked
First appeal under the Employment and Labour Relations Court Act / Civil Procedure - appeal from subordinate court (not expressly stated)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Yaa v Willis (Appeal E011 of 2023) [2024] KEELRC 1489 (KLR)", Case Analysis (2024). Malindi CM ELRC Appeal (from Malindi CM ELRC No. 28 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1489/eng@2024-02-02

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