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ELRCPartially AllowedCause No 914 of 2017· [2024] KEELRC 1891 (KLR)

Mutemi v Gratom Babz Services Limited (Cause 914 of 2017) [2024] KEELRC 1891 (KLR)

Employment and Labour Relations Court
24 July 2024
2,438 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled an employer claiming a worker deserted duty must prove it with contact attempts, awarding the guard Kshs.92,464.51.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a security guard from 15th March 2008, sued for unlawful, wrongful and unfair dismissal, alleging that on 12th May 2016 his supervisor directed him to return his uniform and leave as there was no work. He sought a declaration of unfair termination plus notice pay, accrued leave, public holiday and rest day pay, underpayment, house allowance, 12 months' compensation, SACCO contributions, a certificate of service and costs. The Respondent admitted the employment but asserted that the Claimant deserted duty on 10th May 2016 and counterclaimed for salary in lieu of notice and costs. The court framed two issues: whether the termination was unlawful or the Claimant absconded, and entitlement to reliefs. Applying the settled position that an employer alleging desertion must prove it and demonstrate reasonable steps to contact the employee, the court found the Respondent adduced no evidence of calls, texts or letters, and accepted the Claimant's uncontested account as consistent with the uniform evidence. Termination was held neither substantively justifiable nor procedurally fair under Section 45 of the Employment Act. Awards totalled Kshs.92,464.51: 11 days' salary, notice pay, three years' house allowance at 15% of basic salary, and four months' compensation. Claims for leave, public holidays, rest days, underpayment and SACCO contributions were dismissed for lack of particulars and proof. A certificate of service was ordered and each party to bear own costs.

Key legal issues

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01

Whether the Claimant absconded duty or was unfairly terminated

Holding

The Respondent failed to prove desertion; the termination was neither substantively justifiable nor procedurally fair.

Reasoning

Desertion is a serious infraction requiring proof. The employer must show reasonable, verifiable steps to contact the employee, such as calls, texts or a letter to the last known address. The Respondent adduced no such evidence despite the Claimant's 8 years of service. The Claimant's uncontested evidence that he was told to return the uniform and leave was consistent with the parties' conduct regarding the uniform.

p. 4
02

Fairness of termination under Section 45 of the Employment Act

Holding

Termination must be supported by a valid and fair reason and conducted through a fair procedure; neither was shown.

Reasoning

Under Section 45 of the Employment Act, 2007, the employer must prove substantive justification relating to conduct, capacity, compatibility or operational requirements, plus procedural fairness. The Respondent proved neither a valid reason nor a fair procedure, so the termination fails the fairness test.

p. 4
03

Entitlement to compensation under Section 49(1)(c) and house allowance under Section 31

Holding

Four months' gross salary compensation awarded; house allowance at 15% of basic salary for 3 years awarded as employer neither paid it nor provided housing.

Reasoning

Having found unfair termination, compensation under Section 49(1)(c) was due. The court considered 8 years of diligent service, no recorded misconduct, possible contribution to the termination and the failure to appeal. On house allowance, the Respondent neither paid it, provided housing, nor demonstrated consolidation of salary, so 15% of basic salary for 3 years was awarded.

p. 6

Legal principles established

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  • An employer relying on desertion as a defence must establish it and demonstrate reasonable steps taken to contact the employee to resume duty or face disciplinary action.

Court orders

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  1. 1.Declaration that termination of employment was unlawful and unfair
  2. 2.11 days worked in May 2016 Kshs.3,264.51
  3. 3.Salary in lieu of notice Kshs.9,200.00
  4. 4.House allowance Kshs.43,200.00
  5. 5.Equivalent of 4 months' gross salary Kshs.36,800.00 (total award Kshs.92,464.51)
  6. 6.Certificate of service
  7. 7.Parties to bear their own costs

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 49(1)(c)
  • Employment ActSection 51
  • Employment ActSection 31
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (10)

  • Seabolo v Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    (2018) eKLR
  • Richard Maingi v Wells Fargo Ltd
    (2017) eKLR
  • Chrispine Onguso Okinyi v Devki Steel Mills Ltd
    (2018) eKLR
  • Joseph Nzioka v Smart Coatings Ltd
    (2017) eKLR
  • Sitima v Jokali Handling Services Ltd
    (2023) KEELRC 762 (KLR)
  • Boniface Mwangi v B.O.M. Iyego Secondary School
    (2019) eKLR
  • Simon Mbithi Mbane v Inter Security Services Ltd
    (2018) eKLR
  • Nyabiba v Apak Co. Ltd
    (2023) KEELRC 672 (KLR)
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair and unlawful termination claims under the Employment Act, 2007

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, "Mutemi v Gratom Babz Services Limited (Cause 914 of 2017) [2024] KEELRC 1891 (KLR)", Case Analysis (2024). Cause No 914 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1891/eng@2024-07-24

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