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ELRCPartially AllowedMavoko CMEL No. 21 of 2020 (appeal), Memorandum of Appeal dated 19th August, 2021· [2025] KEELRC 112 (KLR)

Onsanse v Banbros Limited (Employment and Labour Relations Appeal E085 of 2021) [2025] KEELRC 112 (KLR)

Employment and Labour Relations Court
23 January 2025
MOM. Onyango
4,698 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who sacks an employee for absconding without first holding a disciplinary hearing risks paying heavy compensation, even years later.

What this practically means

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Executive summary

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The Appellant, formerly a Claimant in Mavoko CMEL No. 21 of 2020, appealed against the dismissal of his claim for terminal dues arising from the alleged unfair termination of his employment by the Respondent on 23rd August 2019, after he was suspected of theft during a lunchtime search and was later denied access to the premises. The trial magistrate had dismissed the claim on 5th August 2021, holding that the Appellant had not proved unfair termination and had effectively terminated his own employment relationship. On appeal, disposed of by written submissions, the court reconsidered the evidence as a first appellate court. It held that whether the Appellant absconded or was denied access, the Respondent was obliged to inquire into his absence, require him to report back, and terminate employment strictly under sections 41, 43 and 45(2) of the Employment Act. The Respondent's plea that it lacked the Appellant's contacts was untenable, since section 10 requires employers to keep such records. Having failed to subject the Appellant to a disciplinary hearing, the Respondent unfairly terminated his employment. The court set aside the trial judgment and awarded the Appellant pay in lieu of notice (Kshs. 22,596), salary for 23 days in August 2019 (Kshs. 19,989), pro-rata leave (Kshs. 6,812), leave transport allowance (Kshs. 17,600), service pay for 2014-2018 (Kshs. 45,192) and six months' salary as compensation (Kshs. 135,576), with costs in both courts and interest from the date of judgment. Housing allowance, paternity leave and annual salary increment claims were declined.

Key legal issues

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01

Whether the Appellant proved unfair termination

Holding

Yes - the trial court erred; the termination was unfair because the Respondent never subjected the Appellant to a disciplinary hearing and offered no excuse for failing to contact him

Reasoning

The Appellant's position was that he was denied access to work after returning from the police station. The Respondent claimed he absconded and that it lacked his contacts. Section 10 of the Employment Act obliges employers to keep employee records including contacts. Termination on account of absenteeism requires the employer to inquire into the absence, require the employee to report back, and follow sections 41, 43 and 45(2). The Respondent took no steps to reach him, so the dismissal was procedurally unfair.

p. 9
02

Entitlement to remedies

Holding

Partially allowed - notice pay, salary for August 2019, pro-rata leave, leave transport allowance, service pay and 6 months' compensation awarded; housing allowance, paternity leave and salary increment declined

Reasoning

The court assessed each head of claim against the evidence. Notice pay and compensation were awarded under section 49 of the Employment Act based on gross salary of Kshs. 22,596. Salary for August 2019 was awarded as the Respondent did not prove payment of a salary advance. Leave transport allowance was payable under clause 5 of the CBA. Service pay was awarded for years 2014-2018 when he was not an NSSF member. Housing allowance, paternity leave and increments were not proved.

p. 10

Legal principles established

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  • An employer alleging that an employee absconded duties must demonstrate that reasonable efforts were made to contact the employee before termination
  • An employer is legally obliged to keep employment records including employee contacts and cannot plead ignorance of an employee's contacts to avoid a disciplinary hearing
  • Failure to subject an employee to a disciplinary hearing renders the termination unfair

Court orders

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  1. 1.The appeal is allowed in terms of the findings above
  2. 2.The judgment of the trial court is set aside and judgment entered for the Appellant against the Respondent for: pay in lieu of notice Kshs. 22,596; salary for 23 days worked in August 2019 Kshs. 19,989; pro rata leave Kshs. 6,812; leave transport allowance Kshs. 17,600; service pay Kshs. 45,192; compensation Kshs. 135,576
  3. 3.Costs both in the lower court and in the appeal
  4. 4.Interest from date of this judgment

Authorities

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Legislation

  • Employment Act, 2007section 45
  • Employment Act, 2007section 44(4)(a)
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007sections 41, 43 and 45(2)
  • Employment Act, 2007section 10
  • Employment Act, 2007section 49(1)(a) and 49(4)
  • Employment Act, 2007sections 35(1)(c) and 36
  • Employment Act, 2007section 51
  • Collective Bargaining Agreement (with Kenya Long Distance Truck Drivers and Allied Workers Union)clause 5

Cases cited (7)

  • Selle & Another Vs Associated Motor Boat Company Ltd & Others
    [1968] EA 123
  • Kenfreight (E.A) Limited v Benson K. Nguti
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Jane Achieng & another v University of Nairobi
    [2015] eKLR
  • Idd Salim Mwadele & 19 others v Kwale International Sugar Company Limited
  • Simon Mbithi Mbane v Inter Security Services Ltd
    [2018] eKLR
  • Joseph Nzioka v Smart Coatings Limited
    [2017] eKLR
On appeal from
Magistrates' Court (Mavoko, employment and labour cause)
Mavoko CMEL No. 21 of 2020
Jurisdiction invoked
First appellate jurisdiction over an appeal from the trial magistrate's court (Memorandum of Appeal dated 19th August, 2021)

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, "Onsanse v Banbros Limited (Employment and Labour Relations Appeal E085 of 2021) [2025] KEELRC 112 (KLR)", Case Analysis (2025). Mavoko CMEL No. 21 of 2020 (appeal), Memorandum of Appeal dated 19th August, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/112/eng@2025-01-23

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