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ELRCPartially AllowedMombasa CMELRC No. E470 of 2021 (Appeal)· [2024] KEELRC 2316 (KLR)

Roadtainers Mombasa Limited v Tsuma (Appeal E078 of 2024) [2024] KEELRC 2316 (KLR)

Employment and Labour Relations Court
26 September 2024
MMM. Mbarũ
3,362 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Even when an employee abandons duty, Kenyan employers must still follow proper dismissal procedure or the termination will be ruled unfair.

What this practically means

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Executive summary

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This is a first appeal against the judgment of the magistrate's court in Mombasa CMELRC No. E470 of 2021 delivered on 25 March 2024, in which a heavy commercial truck driver was awarded roughly Kshs.2 million for unfair termination. The respondent claimed he was verbally terminated on 5 January 2021 without notice; the appellant countered that he was involved in a self-involving accident while driving KBV 816U, was paid through February 2021, and absconded, and it counterclaimed for losses arising from the accidents. On appeal, the court reiterated the duty of a first appellate court to re-evaluate the evidence afresh. It found that although the employer could have dismissed the respondent for absence under Section 44(4)(a) of the Employment Act, it failed to comply with the mandatory procedural protections in Sections 41 and 18(5)(b): the notices to show cause bore no dates of receipt, the respondent responded in writing, and the disciplinary hearing of 22 February 2021 ended without any sanction. Termination was therefore unfair. However, the trial court erred in awarding maximum 12 months' compensation given the respondent's record of warnings and accidents; this was reduced to one month's gross wage of Kshs.35,221.15. The court recomputed underpayments at Kshs.80,501.64, allowed notice pay at the same figure and a certificate of service, but rejected claims for service pay, public holidays, overtime and house allowance (the latter subsumed in underpayments). The counterclaim was dismissed for want of particulars and breach of fair procedure. The judgment was varied accordingly, with each party bearing its own costs.

Key legal issues

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01

Unfair termination versus desertion

Holding

Termination was unfair; desertion was not proved because notices of receipt were undated and no valid disciplinary process was completed

Reasoning

The employer alleged desertion but could not prove the respondent received the notices to show cause or to attend the disciplinary hearing of 22 February 2021. Even where absence amounts to gross misconduct under Section 44(4)(a), the employer must satisfy Section 41(2) procedure and, upon dismissal, report to the labour officer under Section 18(5)(b). None of this was done, so termination was without lawful procedure.

p. 6
02

Quantum of compensation

Holding

Maximum 12 months' compensation set aside and substituted with one month's gross wage

Reasoning

Section 45(5) requires the court to consider the employee's work record and the procedure undertaken. The respondent's record included warnings, two self-involving accidents and gross misconduct, so maximum compensation was unjustified; one month's gross wage of Ksh.35,221.15 was sufficient.

p. 6
03

Assessment of heads of claim

Holding

The trial court erred in confirming all awards generally; underpayments of Ksh.80,501.64 awarded on recomputed wage, but public holidays and overtime claims failed, service pay failed, certificate of service allowed

Reasoning

The court recalculated the due wage at Ksh.35,221.15 (minimum wage plus 15% house allowance) against the contract wage of Ksh.33,544, giving an underpayment of Ksh.1,677.15 monthly for 48 months. General claims for public holidays and overtime without particularization fail. Certificate of service is mandatory under Section 51.

p. 6
04

Counterclaim

Holding

Dismissed

Reasoning

The appellant failed to articulate the particular losses claimed and failed to invite the respondent to answer the counterclaim; fair procedure cuts both ways.

p. 7

Legal principles established

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  • Even in gross misconduct/desertion cases, the employer must comply with Section 41 procedural protections - notice and hearing - before dismissal
  • A first appellate court must re-evaluate the whole evidence and reach its own conclusions, mindful it did not see the witnesses
  • A disciplinary hearing that ends without a sanction cannot found a case of termination by desertion

Court orders

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  1. 1.A declaration that employment was terminated unfairly
  2. 2.Notice pay ksh.35,221.15
  3. 3.Compensation Ksh.35,221.15
  4. 4.Underpayments Ksh.80,501.64
  5. 5.A certificate of service to issue
  6. 6.Counterclaim is dismissed
  7. 7.Each party bears its costs

Authorities

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Legislation

  • Employment ActSection 44(4)(a)
  • Employment ActSections 43, 45, 45(5), 47(5)
  • Employment ActSection 41(2)
  • Employment ActSection 18(5)(b)
  • Employment ActSection 35(6)
  • Employment ActSection 28(4)
  • Employment ActSection 51
  • Wage Orders (applicable minimum wage orders)Minimum wage for heavy commercial driver

Cases cited (9)

  • Jasan Kisoi Mulwa v SAA Interstate Traders (K) Ltd
    [2018] eKLR
  • Daniel Mueke v Biogas Auto World
    [2014] eKLR
  • Donald Odeke v Fidelity Security Limited
    Cause No.1998 of 2011
  • Josephine M Akinyi v Farhiyo Mohamed
    Cause No.148 of 2018
  • Francis Maina Kamau v Lee Construction
    [2014] eKLR
  • Selle & another v Associated Motor Boat Co. Ltd. & others
  • John Jaoko Othino v Intrahealth International
    [2022] eKLR
  • Pheoby Aloo Inyanga v Stockwell One Homes Management Limited & another
    [2022] eKLR
  • Prof. Macha Isunde v Lavington Security Guards Limited
    [2017] eKLR
On appeal from
Magistrates' Court (CMELRC), Mombasa
Mombasa CMELRC No. E470 of 2021
Jurisdiction invoked
First appeal from the magistrates' court in an employment cause under the Employment Act

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, "Roadtainers Mombasa Limited v Tsuma (Appeal E078 of 2024) [2024] KEELRC 2316 (KLR)", Case Analysis (2024). Mombasa CMELRC No. E470 of 2021 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2316/eng@2024-09-26

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