Gathira v Rwathia Suppliers Ltd & 2 others (Cause E363 of 2021) [2024] KEELRC 1969 (KLR)
The bottom line
#Kenya's Employment Court ruled that an employer cannot simply claim an employee absconded—it must trace the worker and hear their side before termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant absconded duty or was unfairly terminated
The Respondent failed to prove abscondment; the Claimant was unfairly terminated within the meaning of Sections 41, 43 and 45 of the Employment Act
The employer only notified the County Labour Office of the alleged abscondment but took no steps to trace the Claimant or require him to show cause for his absence. Absence from work without permission is a ground for summary dismissal under Section 44(4)(a), which the employer could have invoked after notice. Alleging abscondment without proving the absence or the steps taken to ascertain the employee's whereabouts was insufficient to discharge the employer's statutory burden of proving a valid and fair termination.
Whether the Claimant's prosecution was malicious
Malicious prosecution not established; there was reasonable and probable cause for the police report and no proof of malice or spite
Elements of malicious prosecution were drawn from George Masinde Murunga v Attorney General. Elements (1) and (2) - institution and termination in the Claimant's favour - were undisputed, but the Claimant had to prove lack of reasonable and probable cause and malice. There was a common-ground stock variance and the Claimant, as Senior Stock Clerk, was responsible for stock, so the report to police was justified. No evidence showed hatred or spite, and insufficient evidence supporting the charge does not by itself impute malice.
Entitlement to reliefs
Notice pay, August 2018 salary, 14 days' September 2018 salary, five months' compensatory damages and leave pay awarded; malicious prosecution damages declined
Having found unfair termination, the Court awarded one month's notice pay and five months' compensatory damages, factoring in the short length of employment (June 2017 to September 2018) and circumstances of exit. August 2018 salary was unpaid as confirmed by RW1, and 14 days' salary for September was due. Leave pay for eight months of 2018 was awarded because the employer failed to avail leave records under Section 74(1)(f) of the Employment Act.
Legal principles established
#- Where an employee allegedly absconds, the employer must take reasonable steps to ascertain the employee's whereabouts and give him an opportunity to explain his absence before terminating employment
- The burden rests on the employer to prove the reasons for termination; failure renders the termination unfair
- Acquittal in a criminal case is not a sufficient basis for a claim of malicious prosecution; spite or ill-will must be proved
Court orders
#- 1.A declaration that the termination of the Claimant's employment was unfair and unlawful
- 2.One month's salary in lieu of notice of Kshs 36,800/= awarded to the Claimant
- 3.Salary for August 2018 of Kshs 36,800/= awarded
- 4.Salary for September 2018 (14 days) of Kshs 17,173/= awarded
- 5.Compensatory damages of Kshs 184,000.00 being five months' gross salary awarded
- 6.Leave pay of Kshs 17,173/= for eight months in 2018 awarded
- 7.Total award of Kshs 291,946.00 with interest at court rates from the date of Judgment until payment in full
- 8.The Claimant to have the costs of the suit
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court (first-instance Memorandum of Claim under the Employment Act, 2007); judgment delivered under Article 159(2)(d) and Article 48 of the Constitution and Section 1B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathira v Rwathia Suppliers Ltd & 2 others (Cause E363 of 2021) [2024] KEELRC 1969 (KLR)", Case Analysis (2024). Cause No E363 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1969/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.