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ELRCPartially AllowedCause No 1450 of 2017· [2024] KEELRC 1657 (KLR)

Ogutu v Central Electrical International Limited (Cause 1450 of 2017) [2024] KEELRC 1657 (KLR)

Employment and Labour Relations Court of Kenya
28 June 2024
3,059 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who claims an employee deserted duty must prove it tried to trace them and give them a hearing — hearsay won't win an unfair dismissal case.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from February 2012 as an electrician, claimed that on 8th March 2016, after querying a salary deduction, he was suspended by the Deputy Human Resource Manager, sent away again on return, and never recalled to duty, amounting to a verbal and unfair termination. The Respondent maintained that he deserted duty, and that it reported the desertion to the County Labour Officer by a letter not copied to the Claimant. The court identified three issues: how the parties separated, whether the termination was fair, and entitlement to reliefs. Relying on section 107 of the Evidence Act, it held the Respondent's case was built on hearsay from the site project manager and Human Resource Manager, who were vital witnesses but were not called; an employer alleging desertion must prove genuine efforts to trace the employee and issue a show-cause letter, following Joseph Nzioka v Smart Coatings Ltd. The court found the Claimant was verbally dismissed, and that the termination was both substantively unfair (no proved valid reason under sections 43 and 45(2)) and procedurally unfair (no compliance with section 41). The Respondent filed no submissions. The court awarded one month's notice pay (KShs.14,400), compensation for four years' unutilized leave (KShs.40,320), and a section 49(1)(c) compensatory award of seven months' gross salary (KShs.100,800), plus a certificate of service within 30 days, interest at court rates, and costs to the Claimant. Service pay was declined because the Claimant was an NSSF member.

Key legal issues

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01

How the employment relationship ended - desertion or verbal dismissal

Holding

The Respondent failed to prove desertion; the court found the Claimant was verbally dismissed by the Deputy Human Resources Manager

Reasoning

The Respondent's sole witness gave hearsay evidence, relying on accounts of the site manager and HR manager who were not called. The witness could not give details of the alleged phone call to the employee. The employer made no genuine efforts to trace the employee. The Claimant's own evidence was consistent and unshaken in cross-examination, and the failure to call the crucial witnesses undermined the Respondent's version.

p. 5
02

Whether the termination was substantively and procedurally fair

Holding

The termination was both substantively and procedurally unfair

Reasoning

Desertion, had it been proved, could have been a valid reason under section 43, but it was not proved, so the employer failed to discharge its burden under sections 43 and 45(2). No effort at adhering to section 41 procedural fairness - notification and hearing - was evident in the Respondent's case.

p. 4
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Entitlement to reliefs

Holding

Notice pay, leave compensation and a compensatory award of seven months' gross salary granted; service pay declined

Reasoning

Termination without notice entitled the Claimant to one month's notice pay under section 35. Leave evidence was unchallenged, warranting compensation under section 28. NSSF membership excluded service pay. Under section 49(1)(a), considering the unfairness, the retaliatory nature of the termination, absence of contribution by the Claimant and length of service, seven months' gross salary was awarded.

p. 6

Legal principles established

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  • An employer alleging desertion must prove it made genuine efforts to trace the employee, ascertain why he was not reporting to duty, and warn of the repercussions of continued absence
  • A claim of desertion cannot be proved by hearsay evidence; the employer must call vital witnesses
  • For a termination to be fair there must be a valid and fair reason (ss.43, 45(2)) and compliance with procedural fairness (s.41)

Court orders

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  1. 1.One month's salary in lieu of notice, KShs.14,400.00
  2. 2.Compensation for unutilized leave days, KShs.40,320.00
  3. 3.Compensation pursuant to section 49(1)(c) of the Employment Act, KShs.100,800.00 (seven months' gross salary)
  4. 4.Respondent to issue the Claimant with a Certificate of Service under Section 51 of the Employment Act within 30 days of the judgment
  5. 5.Interest at court rates on the sums awarded from the date of judgment till full payment
  6. 6.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Actsection 28
  • Employment Actsection 35
  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45(2)
  • Employment Actsection 49(1)(a) and 49(1)(c)
  • Employment Actsection 51
  • Evidence Act, Cap 80 Laws of Kenyasection 107
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 48, 159(2)(d)
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 1B

Cases cited (4)

  • Mary Chemweno Kiptui vs. Kenya Pipeline Company Ltd
    (2014) eKLR
  • Joseph Nzioka vs. Smart Costing Limited (also cited as Smart Coatings Limited)
    (2017) eKLR
  • Kenya Union of Commercial Food and Allied Workers vs. Meru North Farmers Sacco Limited
    (2014) eKLR
  • Kenfreight (E.A.) Ltd vs. Benson K. Nguti
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 35, 41, 43, 45, 49 and 51 invoked); original claim for unfair termination

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, "Ogutu v Central Electrical International Limited (Cause 1450 of 2017) [2024] KEELRC 1657 (KLR)", Case Analysis (2024). Cause No 1450 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1657/eng@2024-06-28

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