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ELRCPartially AllowedCause No 915 of 2017· [2024] KEELRC 1976 (KLR)

Nzioki v Gratom Babz Services Limited (Cause 915 of 2017) [2024] KEELRC 1976 (KLR)

Employment and Labour Relations Court
24 July 2024
2,421 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, employed by the Respondent as a night guard from July 2012 at Kshs.5,500 rising to Kshs.7,200 per month, sued for unlawful and unfair termination, alleging that on 5th March 2016 his supervisor instructed him to go home owing to reduced work and await recall which never came, with no termination letter or terminal dues. The Respondent admitted employment but contended the Claimant deserted the workplace on 6th March 2016, never returned and was unreachable, and counterclaimed for one month's salary in lieu of notice. The court framed two issues: whether the employment was unfairly terminated or the Claimant deserted, and entitlement to reliefs. Applying the definition of desertion as wilful and unjustified abandonment with intention not to return, and following Felistas Acheha Ikatwa v Charles Peter Otieno and related authorities, the court held an employer alleging desertion must demonstrate steps taken to contact the employee and urge resumption of duty. The Respondent produced no such evidence, so desertion was not proved. Citing Walter Ogal Anuro v TSC and Section 45 of the Employment Act, the court found the Respondent failed to establish substantive justification and procedural fairness, and declared the termination unfair. The court awarded 5 days' salary for February 2016 (Kshs.1,628.16), salary in lieu of notice (Kshs.8,280), house allowance at 15% for 3 years (Kshs.38,880), three months' compensation (Kshs.24,840) and a certificate of service, totalling Kshs.73,628.16. Claims for leave, rest days, public holidays, underpayment, service pay, uniform and SACCO reimbursements were dismissed for want of proof. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Claimant deserted the workplace

Holding

The Respondent failed to prove desertion; it adduced no evidence of steps taken to contact the Claimant

Reasoning

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.

p. 4
02

Whether termination was substantively justified and procedurally fair

Holding

The Respondent failed to prove valid reason or fair procedure; termination was unfair

Reasoning

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.

p. 5
03

Entitlement to reliefs

Holding

Declaration, February salary, notice pay, 3-months compensation, house allowance and certificate of service awarded; other heads dismissed for want of proof

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Declaration that termination of employment was unfair
  2. 2.5 days salary in February 2016 Kshs.1,628.16
  3. 3.Salary in lieu of notice Kshs.8,280.00
  4. 4.House allowance Kshs.38,880.00
  5. 5.Equivalent of 3 months gross salary Kshs.24,840.00 (total Kshs.73,628.16)
  6. 6.Certificate of service
  7. 7.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Sections 36, 40(1)(g), 41, 43, 45, 49(1)(c), 51, 31(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Articles 159(2)(d), 48

Cases cited (13)

  • Matesho V Newton (2022) KEELRC 1554
    (2022) KEELRC 1554
  • Onesmus Kinyua Magoiya V Prudential Life Assurance Co. Kenya (2022) eKLR
    (2022) eKLR
  • Geeta Joshi V Pandya Memorial Hospital (2019) eKLR
    (2019) eKLR
  • Seabolo V Belgravia Hotel (1997) 6 BLLR 829 (CCMA)
    (1997) 6 BLLR 829
  • Felistas Acheha Ikatwa V Charles Peter Otieno (2018) eKLR
    (2018) eKLR
  • Richard Maingi V Wells Fargo Ltd (2017) eKLR
    (2017) eKLR
  • Chrispine Onguso Okinyi V Devki Steel Mills Ltd (2018) eKLR
    (2018) eKLR
  • Joseph Nzioka V Smart Coatings Ltd (2017) eKLR
    (2017) eKLR
  • Sitima V Jokali Handling Services Ltd (2023) KEELRC 762 (KLR)
    (2023) KEELRC 762
  • Boniface Mwangi V B.O.M. Iyego Secondary School (2019) eKLR
    (2019) eKLR
  • Simon Mbithi Mbane V Inter Security Services Ltd (2018) eKLR
    (2018) eKLR
  • Nyabiba V Apak Co. Ltd (2023) KEELRC 672 (KLR)
    (2023) KEELRC 672
  • Walter Ogal Anuro V Teachers Service Commission (2013) eKLR
    (2013) eKLR
Jurisdiction invoked
First-instance employment claim under the Employment Act, 2007 (ELRC jurisdiction)

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, "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.