Omune v Ray Store Limited (Appeal E060 of 2023) [2025] KEELRC 130 (KLR)

The court found two irreconcilable versions of the 17th August 2022 events and inferred a single encounter between the appellant and Mr. Patel. The respondent adduced no evidence of reasonable steps to have the appellant resume duty or any disciplinary process for alleged desertion. Relying on authority, the court held the employer bore the duty to demonstrate such steps and a notice to show cause, and found the separation procedurally unfair.

Section 31 of the Employment Act places the obligation to provide housing on the employer. The respondent adduced no evidence that it provided housing, paid a housing allowance, or that the salary was consolidated. Non-pleading of the precise amount could not defeat the statutory right, and 15% of salary was adopted as a reasonable measure for three years by virtue of Section 89 of the Employment Act.

The appellant led no evidence that employees signed in and out, which would have obliged the respondent to produce attendance registers. His witness statement made no reference to reporting and exit times, and on cross-examination he confirmed reporting between 7:30 and 8:00am but did not testify as to when he exited the workplace. In the absence of supportive evidence, the claim was unsustainable.

The appellant prayed for unpaid leave allowance for 8 years but did not specify his leave entitlement or the amount claimed. The court held that leave allowance is a contractual term, not a statutory entitlement, is certain and paid annually; as a species of special damages it must be specifically pleaded and strictly proved, and the trial court's finding was upheld.

The appellant's ground on remuneration was misconceived because Article 41 of the Constitution encompasses the right to reasonable remuneration rather than 'proper remuneration'. Further, the appellant did not plead that he was underpaid or that his salary was not paid consistently for services rendered, so the ground failed.