Nzioki v Gratom Babz Services Limited (Cause 915 of 2017) [2024] KEELRC 1976 (KLR)
The bottom line
#A Kenyan employer who claims an employee deserted the job must prove it tried to contact them, or the firing is unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant deserted the workplace
The Respondent failed to prove desertion; it adduced no evidence of steps taken to contact the Claimant
The court adopted the definition of desertion requiring intention not to return and held that where desertion is pleaded as a defence, the employer must show the efforts made to reach the employee, such as calls, notices to show cause at last known address, or contacts of next of kin. The Respondent produced no such evidence, rendering the allegation unverifiable and unproved.
Whether termination was substantively justified and procedurally fair
The Respondent failed to prove valid reason or fair procedure; termination was unfair
Relying on Section 45 of the Employment Act and Anuro v TSC, the court required both valid reason and fair procedure. The Respondent did not controvert the Claimant's testimony that he was sent home due to reduced work, and did not demonstrate how the separation occurred.
Entitlement to reliefs
Declaration, February salary, notice pay, 3-months compensation, house allowance and certificate of service awarded; other heads dismissed for want of proof
The court awarded only heads proved or statutorily mandated. Notice pay was awarded under Section 36; house allowance under Section 31(1) at 15% for 3 years; compensation under Section 49(1)(c) assessed at 3 months' salary considering length of service and lack of contribution to termination. Leave, rest days, public holidays, underpayment, service pay, uniform and SACCO claims failed for lack of particulars and proof.
Legal principles established
#- An employer alleging desertion must demonstrate the steps taken to contact the employee and urge resumption of duty or face disciplinary action
- Termination must satisfy both substantive justification and procedural fairness
Court orders
#- 1.Declaration that termination of employment was unfair
- 2.5 days salary in February 2016 Kshs.1,628.16
- 3.Salary in lieu of notice Kshs.8,280.00
- 4.House allowance Kshs.38,880.00
- 5.Equivalent of 3 months gross salary Kshs.24,840.00 (total Kshs.73,628.16)
- 6.Certificate of service
- 7.Each party to bear their own costs
- Jurisdiction invoked
- First-instance employment claim under the Employment Act, 2007 (ELRC jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nzioki v Gratom Babz Services Limited (Cause 915 of 2017) [2024] KEELRC 1976 (KLR)", Case Analysis (2024). Cause No 915 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1976/eng@2024-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.