Finsbury Trading Limited v Kinama (Appeal E002 of 2024) [2025] KEELRC 161 (KLR)
The bottom line
#Kenyan employers cannot simply claim a worker absconded; they must trace the employee and follow due process, or face unfair termination findings.
What this practically means
#Executive summary
#Key legal issues
#Unfair termination versus voluntary abscondment
The finding of unfair termination was correct; the employer failed to discharge its legal duty under Sections 41, 43 and 45 of the Employment Act
The court, as a first appellate court, re-evaluated the evidence. The employer alleged the respondent absconded after being summoned over stolen goods, but did not demonstrate steps to close the employment relationship lawfully. Under Section 18(5)(b) an employer alleging abandonment must trace the employee, require resumption of duty, and where necessary issue termination notice with a report to the labour officer. This was not done, so the trial court's finding of unfair termination stood.
Award of general damages not pleaded
The award of Ksh.300,000 general damages was erroneous and set aside; remedies lie under Section 49
Relying on the Supreme Court's decision in Kenya Ports Authority v Munyao, once unfair termination is established the only question is the appropriate remedy under Section 49. Damages under Article 41 must be specifically pleaded and proved. Since the respondent pleaded no constitutional violation and the magistrate herself found Section 49 remedies applicable, the general damages award was a complete departure from the pleadings and had no legal justification.
Quantification of terminal dues
Notice pay, three months' compensation, January 2021 wages for 26 days and accrued leave pay were awarded; house allowance, overtime and service pay claims failed
The court assessed each head on the merits. Notice pay of Ksh.15,609 was admitted. Compensation was limited to three months' wages (Ksh.46,827) given the respondent's short service of under two years. Wages were due for work done to 26 January 2021. Leave accrued at 35 days under Section 28(2). House allowance was consolidated in the gross wage; overtime was unproved; service pay was excluded by remitted statutory dues under Section 35(5) and (6).
Legal principles established
#- Where an employer alleges abscondment or abandonment, the employer must demonstrate that it took reasonable steps to trace the employee, require resumption of duty and address the absenteeism through disciplinary channels before terminating
- Upon a finding of unfair termination, remedies are limited to those under Section 49 of the Employment Act; general damages are not awardable unless pleaded and proved under a constitutional head
Court orders
#- 1.A declaration that there was unfair termination of employment
- 2.Compensation of Ksh.46,827
- 3.Notice pay of Ksh.15,609
- 4.Pay for January 2021 of Ksh.13,000
- 5.Leave pay of Ksh.22,585.50
- 6.Issuance of a certificate of service following clearance
- 7.Costs of the lower court proceedings to the respondent
- 8.Each party to bear its own costs of the appeal
- 9.Set aside of the award of general damages of Ksh.300,000 and the order for interest from date of filing suit
- On appeal from
- Employment and Labour Relations Court (Magistrates' Court), Mombasa
- CMELRC No. 162 of 2021
- Jurisdiction invoked
- First appeal from the magistrates' court in an employment and labour relations cause under the Employment and Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Finsbury Trading Limited v Kinama (Appeal E002 of 2024) [2025] KEELRC 161 (KLR)", Case Analysis (2025). ELRC Appeal arising from Mombasa CMELRC No. 162 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/161/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.