Mutsami v Classic Mouldings Limited (Cause 391 of 2018) [2024] KEELRC 1854 (KLR)
The bottom line
#A Kenyan court ruled that firing a sick employee without a hearing is unfair, and employers must prove desertion claims with real evidence of outreach.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant was unfairly terminated or deserted duties.
- 2.Whether the Claimant is entitled to the reliefs sought.
Key legal issues
#Whether the claimant was unfairly terminated or deserted duties
The claimant was unfairly terminated on account of her illness; the desertion allegation failed
The Respondent failed to prove desertion with expert opinion or effective outreach. The driver said to have searched for the claimant was not called as a witness, and no notice of contemplated termination was issued. The medical condition was known to the Respondent, which sought and paid for a second opinion recommending surgery. Issuance of a certificate of service and terminal dues evidenced termination. Termination without adherence to section 41 was unfair.
Whether the Claimant is entitled to the reliefs sought
Partially: one month's salary in lieu of notice (Kshs 30,000) and eight months' salary compensation (Kshs 240,000) awarded; December salary balance, service pay and house allowance refused
Compensation was assessed at eight months' salary considering ten years of service, the claimant's general unskilled role, and the Respondent's initial support for medical attention. Statutory notice pay was fixed at one month given absence of a written contract. Service pay was barred by NSSF membership; house allowance had been paid; December salary was already paid at half pay less deductions.
Legal principles established
#- Desertion requires intention never to return, and an employer alleging desertion must show efforts to reach the employee and notice that termination on that ground is under consideration
- Terminal dues payment and a certificate of service are evidence of termination of employment
- An employee whose employment is terminated on account of illness is entitled to compensation where termination does not adhere to section 41 of the Employment Act
Court orders
#- 1.Balance salary for December 2016: NIL
- 2.Service pay for 10 years: NIL
- 3.One month's salary in lieu of notice: Kshs 30,000
- 4.House allowance: NIL
- 5.8 months' salary compensation: Kshs 240,000
- 6.Total award Kshs 270,000 plus costs of the suit
- 7.Items (iii) and (v) subject to taxes and statutory deductions, attracting interest at court rates from date of judgment until payment in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (claims for unfair termination and terminal dues)
Relief refused
#Balance salary for December 2016
Claimant was on half pay and servicing a Sacco loan of Kshs 15,000 deductions
Service pay for 10 years
Claimant was an NSSF member; under Section 35(6) NSSF members are not entitled to service pay
House allowance
Claimant confirmed in cross-examination that she received house allowance
Costs
Claim allowed with costs of the suit to the Claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Desertion is the act of an employee leaving work with a clear intention never to return. It is a form of repudiation of contract of employment by an employee.
An employer alleging desertion against an employee must show efiorts were made towards reaching out to the employee and putting them on notice that termination of employment on this ground is under consideration.
The Court is of the view that terminal dues payment and a certificate of service are evidence of termination of employment.
The Court therefore reaches the inevitable conclusion that the Claimant's employment was terminated because of her illness and in carrying out the termination, the respondent never adhered to the provisions of the law as provided under section 41 of the Employment Act.
In conclusion the Claimant's claim is hereby allowed with costs as follows;
Items (iii) and (v) shall be subject to taxes and statutory deductions but shall attract interest at Court rates from date of Judgment until payment in full.
Issues in the judgment
#Garbled text in the framing of issues paragraph
Inconsistency in the date the certificate of service was issued - claimant pleaded January 2017, respondent's witness testified February 2017
Typographical error '0' preceding the Determination heading
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutsami v Classic Mouldings Limited (Cause 391 of 2018) [2024] KEELRC 1854 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1854/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.