Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment (ELRC Appeal at Mombasa)· [2024] KEELRC 2298 (KLR)

Tornado Carriers Limited v Okwomi (Employment and Labour Relations Appeal E001 of 2024) [2024] KEELRC 2298 (KLR)

Employment and Labour Relations Court
26 September 2024
MMM. Mbarũ
2,194 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenyan employers cannot fire a worker for 'absconding' without proving they tried to trace and hear the employee first.

What this practically means

#

Executive summary

#
This is a first appeal from the judgment of Mombasa CMELRC E668 of 2021 delivered on 6 December 2023, in which the respondent was awarded notice pay, house allowance and 12 months' compensation for unfair summary dismissal. The respondent had been employed by the appellant from 7 January 2015 as a mechanic/workshop assistant at Ksh.20,000 monthly. Following a paint-spill incident on 20 June 2021, an altercation with a colleague and police intervention, the respondent was suspended, and the appellant contended he thereafter absconded duty, attracting no termination. The appellant raised five grounds challenging the findings of summary dismissal and the awards. The court, re-evaluating the record as a first appeal, held that although Section 44(4)(a) permits termination for unjustified absence, Section 41(2) obliges the employer to hear the employee before summary dismissal, and Section 18(5)(b) requires notice of termination, serviceable on the Labour Officer where the employee cannot be traced. The appellant showed no efforts to trace the respondent, so the finding of unfair termination could not be faulted. The court varied the awards: compensation reduced from 12 to 6 months (Ksh.120,000) given 6 years' service and a poor work record; notice pay reduced to Ksh.20,000; and house allowance computed at Ksh.3,000 for 78 months, totaling Ksh.234,000, since the appellant produced no records disaggregating house allowance. Each party bears its own costs of the appeal; trial court costs stand as awarded.

Key legal issues

#
01

Whether summary dismissal for absconding was fair

Holding

Unfair termination was properly found; the appellant failed to show efforts to trace the respondent for a disciplinary hearing

Reasoning

Section 44(4)(a) permits termination for absence without permission, but Section 41(2) obliges the employer to hear the employee before summary dismissal. Section 18(5)(b) requires notice of termination, served on the Labour Officer where the employee cannot be traced. The appellant demonstrated no efforts to trace the respondent or invite him to a hearing, so the finding of unfair termination stood.

p. 4
02

Whether the 12 months' compensation award was justified

Holding

Reduced to 6 months (Ksh.120,000) considering length of service and poor work record

Reasoning

Maximum compensation under Section 49 of the Employment Act requires the court to give reasons and identify exceptional circumstances. With 6 years' service and a poor work record under Section 45(5), 6 months' compensation was appropriate on a monthly wage of Ksh.20,000.

p. 4
03

Whether the house allowance award was justified

Holding

Reduced to Ksh.3,000 x 78 months = Ksh.234,000; employer bore duty to produce records

Reasoning

Under Sections 10(6) and (7) of the Employment Act the employer bears the legal duty to submit work records. The appellant filed no records showing how house allowance was allocated within the Ksh.20,000 wage, so a 15% house allowance on the basic wage was computed for 78 months.

p. 5

Legal principles established

#
  • An employer cannot justify termination by simply alleging that the employee absconded duty; the employer must issue notice inviting the employee to a disciplinary hearing and, where the employee cannot be traced, serve notice on the Labour Officer
  • An allegation that an employee absconded duty obliges the employer to demonstrate efforts to contact the employee
  • An award of the maximum 12 months' compensation must be justified with reasons and exceptional circumstances

Court orders

#
  1. 1.Compensation Ksh.120,000 (reduced from 12 to 6 months)
  2. 2.Notice pay Ksh.20,000 (reduced from Ksh.23,039.45)
  3. 3.House allowance Ksh.234,000 (reduced from Ksh.269,561)
  4. 4.For the appeal, each party bears its costs
  5. 5.For the trial court, costs as awarded
On appeal from
Mombasa CMELRC
E668 of 2021
Jurisdiction invoked
First appeal from the Employment and Labour Relations Court (subordinate court) - re-evaluation of the record as a first appeal

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Tornado Carriers Limited v Okwomi (Employment and Labour Relations Appeal E001 of 2024) [2024] KEELRC 2298 (KLR)", Case Analysis (2024). Not stated in judgment (ELRC Appeal at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2298/eng@2024-09-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.