Peter v Jei Stores Limited (Cause E6477 of 2020) [2024] KEELRC 2008 (KLR)
The bottom line
#A Kenyan employer who claims an employee absconded must prove it tried to contact them, or the dismissal will be ruled unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was terminated or absconded
The court found the employment was terminated unlawfully; the employer failed to prove abscondment or that it summoned the Claimant back
The suspension was oral and the Claimant was never directly contacted to return for a disciplinary hearing or audit queries. The Respondent's witness admitted he never called the Claimant, only that an advocate had called him. The employer failed to demonstrate efforts to call back an employee it accused of abscondment, and failed to show a basis for termination under sections 43 and 45 of the Employment Act.
Whether the termination complied with section 41 of the Employment Act
The Claimant was not subjected to the procedural requirements of section 41 despite theft accusations
Where accusations of theft were levelled against the employee, the employer was obliged to give her details of the accusations, an opportunity to respond, and accompaniment by a shop steward or co-employee. None of these occurred: the suspension was oral, no disciplinary meeting was convened, and the employer never contacted the Claimant directly to return.
Whether the Respondent proved its counterclaim for Kshs. 140,803/-
Counterclaim dismissed; the Respondent failed to prove the alleged theft
Other than alleging theft, the Respondent did not produce the audit report which would have revealed the extent of any complicity. The criminal case, which applied a higher threshold of proof, resulted in the Claimant's acquittal on the charge of stealing by servant. The court therefore found her not culpable and dismissed the counterclaim.
Remedies for the unlawful termination
Notice pay, July salary and three months' compensation awarded, with certificate of service
Relying on section 49 as explained in Ol Pejeta Ranching Limited v David Wanjau Muhoro and Cooperative Bank of Kenya Limited v Yator, compensation should make good the employee's loss, not punish the employer. The court fixed compensation at three months' salary considering that the Claimant had secured alternative employment.
Legal principles established
#- An employer alleging abscondment must demonstrate the efforts made to call back the employee it accuses of absconding
- An employer must prove basis for termination under sections 43 and 45 of the Employment Act and observe section 41 procedure where accusations are levelled
- A party alleging loss must discharge its evidentiary burden; failure to produce the audit report is fatal to a theft-based counterclaim
Court orders
#- 1.One month's salary in lieu of notice – Kshs. 11,500/-
- 2.Salary for July 2020 – Kshs. 11,500/-
- 3.3 months' salary as compensation – Kshs. 34,500/-
- 4.Certificate of service strictly in terms of section 51 of the Employment Act
- 5.Costs of the suit to the Claimant
- 6.Interest at court rates on the sums in (a), (b) and (c) from the date of judgment till payment in full
- 7.Counterclaim dismissed with no order as to costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act, ss. 41, 43, 44, 45, 49, 51 invoked); original jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter v Jei Stores Limited (Cause E6477 of 2020) [2024] KEELRC 2008 (KLR)", Case Analysis (2024). Cause No E6477 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2008/eng@2024-08-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.