Mutemi v Gratom Babz Services Limited (Cause 914 of 2017) [2024] KEELRC 1891 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant absconded duty or was unfairly terminated
The Respondent failed to prove desertion; the termination was neither substantively justifiable nor procedurally fair.
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.
Fairness of termination under Section 45 of the Employment Act
Termination must be supported by a valid and fair reason and conducted through a fair procedure; neither was shown.
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.
Entitlement to compensation under Section 49(1)(c) and house allowance under Section 31
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.
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.
Legal principles established
#- 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
#- 1.Declaration that termination of employment was unlawful and unfair
- 2.11 days worked in May 2016 Kshs.3,264.51
- 3.Salary in lieu of notice Kshs.9,200.00
- 4.House allowance Kshs.43,200.00
- 5.Equivalent of 4 months' gross salary Kshs.36,800.00 (total award Kshs.92,464.51)
- 6.Certificate of service
- 7.Parties to bear their own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair and unlawful termination claims under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.