Lee Construction Limited v Moseti (Employment and Labour Relations Appeal E017 of 2023) [2024] KEELRC 2538 (KLR)
The bottom line
#Kenya's Employment Court ruled that an employee who ignores a written instruction to resume work has absconded, not been constructively dismissed, and loses claims for salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent was constructively dismissed or absconded work
The respondent was not constructively dismissed; he voluntarily absconded work from 27th July 2020 by defying the instruction to report to the Head Office.
The suspension letter required the respondent to report to the Head Office on 27th July 2020. His claim that he reported and was verbally referred to Nyamira was unsupported: he did not name the person he met or who redirected him. That evidentiary gap led the court to conclude he never reported back and absconded to evade disciplinary process, so constructive dismissal was not established.
Entitlement to salary from August 2020 to 25th February 2021
The trial court erred in awarding Kshs.250,000 for seven months' salary; stopping salary for an absconding employee is lawful and statutory deductions cease accordingly.
Since the court found the respondent absconded from 27th July 2020, he performed no services thereafter. The trial court's reasoning - that the employer's stopping of salary and statutory remittances evidenced constructive dismissal - was rejected as an employee who absconds is not entitled to salary, and deductions can only be remitted when salary is paid.
Legal principles established
#- Where an employee is suspended and directed to report back on a stated date and fails to do so without proof, he absconds; an employer may lawfully stop salary and statutory deductions for an absconding employee.
- First appellate court must re-evaluate evidence and reach its own conclusions, making allowance for not having seen the witnesses.
Court orders
#- 1.The appeal is allowed as prayed
- 2.The judgment rendered by the lower court on 26th September 2023 is set aside and substituted with an order dismissing the respondent's suit with costs
- 3.The appellant is awarded costs of the appeal
- On appeal from
- Lower Court (Senior Principal Magistrate, Hon. Mararo, SPM)
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court from the lower court in an employment dispute
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lee Construction Limited v Moseti (Employment and Labour Relations Appeal E017 of 2023) [2024] KEELRC 2538 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2538/eng@2024-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.