Ogutu v Central Electrical International Limited (Cause 1450 of 2017) [2024] KEELRC 1657 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#How the employment relationship ended - desertion or verbal dismissal
The Respondent failed to prove desertion; the court found the Claimant was verbally dismissed by the Deputy Human Resources Manager
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.
Whether the termination was substantively and procedurally fair
The termination was both substantively and procedurally unfair
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.
Entitlement to reliefs
Notice pay, leave compensation and a compensatory award of seven months' gross salary granted; service pay declined
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.
Legal principles established
#- 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
#- 1.One month's salary in lieu of notice, KShs.14,400.00
- 2.Compensation for unutilized leave days, KShs.40,320.00
- 3.Compensation pursuant to section 49(1)(c) of the Employment Act, KShs.100,800.00 (seven months' gross salary)
- 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.Interest at court rates on the sums awarded from the date of judgment till full payment
- 6.Costs of the suit to the Claimant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.