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ELRCPartially AllowedCause No. 1948 of 2017· [2024] KEELRC 1783 (KLR)

Owaka v Midland Hauliers Limited (Cause 1948 of 2017) [2024] KEELRC 1783 (KLR)

Employment and Labour Relations Court
9 July 2024
JGJacob Gakeri
2,503 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who claims an employee deserted duty must prove it tried to contact the worker, or the dismissal counts as unfair.

What this practically means

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Executive summary

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The Claimant, employed as a tyre technician at Kshs.20,000 per month, sued for unlawful termination after being suspended on 24th April 2017 pending investigation into the loss of a component of a branding machine. He alleged he was locked out when he reported back on 9th May 2017 and sought Kshs.320,000 comprising 12 months' compensation, notice pay and unpaid salary for April to June 2017, plus costs and interest. The Respondent admitted the employment and suspension but alleged the Claimant deserted the workplace and counterclaimed Kshs.70,000 for a replacement branding machine. The Respondent, though served and having filed a witness statement, adduced no evidence at trial. The court framed two issues: whether the termination was unfair or the Claimant absconded, and entitlement to reliefs. It found the Claimant's account internally inconsistent, but held that the Respondent equally failed to prove desertion, there being no evidence of efforts to contact the employee or of a notice to show cause. Termination was therefore unfair for want of substantive justification and procedural fairness. The court awarded notice pay of Kshs.20,000, April salary of Kshs.20,000 if unpaid, Kshs.5,806.45 for nine days of May, and compensation equivalent to two months' gross salary (Kshs.40,000), totalling Kshs.85,806.45. The June salary claim and the counter-claim failed for want of proof. Each party was ordered to bear its own costs. Judgment was delivered virtually at Nairobi on 9th July 2024.

Key legal issues

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01

Whether the termination was unfair or the Claimant deserted

Holding

Termination was unfair; the desertion allegation was unproven as the Respondent tendered no evidence of efforts to contact the Claimant or of a notice to show cause

Reasoning

The court found both the Claimant's account inconsistent and the Respondent's desertion allegation unproven. Applying Employment Act standards and authority, an employer claiming desertion must show efforts to have the employee resume duty and notice of contemplated termination. The Respondent adduced no such evidence, so neither substantive justification nor procedural fairness was demonstrated.

p. 5
02

Entitlement to reliefs

Holding

Notice pay, April salary (if unpaid), 9 days' May salary and two months' gross salary as compensation awarded; June salary claim and counter-claim failed

Reasoning

Having failed to prove notice and payment of April salary, the Respondent was liable for those sums. Compensation under Section 49(1)(c) was reduced to two months' gross salary because the Claimant contributed to the termination, did not appeal, and gave no evidence of length of service. The June claim and the Kshs.70,000 counter-claim lacked proof.

p. 6

Legal principles established

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  • An employer relying on desertion must demonstrate reasonable steps taken to contact the employee and give notice that termination is being considered
  • A valid termination requires both substantive justification and procedural fairness
  • Even in an undefended suit, the claimant must prove employment and unfair termination

Court orders

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  1. 1.Salary in lieu of notice Kshs.20,000.00
  2. 2.Salary for April 2017, if unpaid, Kshs.20,000.00
  3. 3.Salary for 9 days of May 2017 Kshs.5,806.45
  4. 4.Equivalent of 2 months gross salary Kshs.40,000.00
  5. 5.Total award of Kshs.85,806.45 entered in favour of the Claimant against the Respondent
  6. 6.Each party to bear their own costs
  7. 7.Claim for salary for June 2017 dismissed; counter-claim of Kshs.70,000 not proved

Authorities

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Legislation

  • Employment ActSection 49(1)(c)
  • Evidence Act
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (14)

  • Coca Cola East & Central Africa Ltd V Maria Kagai Ligaga
    (2015) eKLR
  • Cherokewa Mrisha V Civicon Ltd
    (2014) eKLR
  • Janet Kaphiphe Ouma & another V Marie Stopes International (K)
    HCCC No. 68 of 2007
  • Isaac Katambani Iminya V Firestone East Africa (1969) Ltd
    (2015) eKLR
  • Monica Kanini Mutua V Al-Arafat Shopping Centre & another
    (2018) eKLR
  • Humphrey Munythia Mutemi V Soluxe International Group of Hotels and Lodges Ltd
    (2020) eKLR
  • Nicholus Kipkemoi Korir V Hatari Security Guards Ltd
    (2016) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Seabolo V Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Felistas Acheha Ikatwa V Charles Peter Otieno
    (2018) eKLR
  • Boniface Francis Mwangi V B.O.M Iyego Secondary School
    (2019) eKLR
  • Simon Mbithi Mbane V Inter Security Services Ltd
    (2018) eKLR
  • Joseph Nzioka V Smart Coatings Ltd
    (2017) eKLR
  • Julius Kyalo Malonza V Ruth Osoto t/a Eraeva Catering Services
    (2021) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim and counter-claim)

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, "Owaka v Midland Hauliers Limited (Cause 1948 of 2017) [2024] KEELRC 1783 (KLR)", Case Analysis (2024). Cause No. 1948 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1783/eng@2024-07-09

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