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ELRCPartially AllowedELRC Appeal arising from Mombasa CMELRC No. 162 of 2021· [2025] KEELRC 161 (KLR)

Finsbury Trading Limited v Kinama (Appeal E002 of 2024) [2025] KEELRC 161 (KLR)

Employment and Labour Relations Court
30 January 2025
3,101 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal against the judgment of the magistrates' court in Mombasa CMELRC No. 162 of 2021, delivered on 6 December 2023, which found that the respondent loader's employment was unfairly terminated and awarded him general damages of Ksh.300,000 plus costs and interest. The appellant employer contended that the respondent absconded after being summoned to explain stolen goods and that general damages were neither pleaded nor awardable under Section 49 of the Employment Act. The court, applying Selle v Associated Motor Boat Co, re-evaluated the evidence and upheld the finding of unfair termination, holding that an employer pleading abandonment must take reasonable steps to trace the employee, require resumption of duty and use disciplinary channels, failing which it must issue termination notice with a report to the labour officer under Section 18(5)(b). Relying on the Supreme Court's decision in Kenya Ports Authority v Munyao, the court held that remedies for unfair termination are confined to Section 49 and that general damages, being unpleaded, had no legal justification; the Ksh.300,000 award was set aside. The court then assessed each head of claim on the merits, awarding compensation of three months' wages (Ksh.46,827), notice pay (Ksh.15,609), January 2021 wages for 26 days worked (Ksh.13,000) and leave pay (Ksh.22,585.50), together with a certificate of service. Claims for house allowance, overtime and service pay failed, and no interest was allowed. Costs of the lower court were awarded to the respondent, while each party was ordered to bear its own costs of the appeal. The appeal was thus partially successful.

Key legal issues

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01

Unfair termination versus voluntary abscondment

Holding

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

Reasoning

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.

p. 5
02

Award of general damages not pleaded

Holding

The award of Ksh.300,000 general damages was erroneous and set aside; remedies lie under Section 49

Reasoning

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.

p. 5
03

Quantification of terminal dues

Holding

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

Reasoning

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).

p. 6

Legal principles established

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  • 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

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  1. 1.A declaration that there was unfair termination of employment
  2. 2.Compensation of Ksh.46,827
  3. 3.Notice pay of Ksh.15,609
  4. 4.Pay for January 2021 of Ksh.13,000
  5. 5.Leave pay of Ksh.22,585.50
  6. 6.Issuance of a certificate of service following clearance
  7. 7.Costs of the lower court proceedings to the respondent
  8. 8.Each party to bear its own costs of the appeal
  9. 9.Set aside of the award of general damages of Ksh.300,000 and the order for interest from date of filing suit

Authorities

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Legislation

  • Employment ActSection 49
  • Employment ActSection 47(5)
  • Employment ActSection 45
  • Employment ActSection 43
  • Employment ActSection 41
  • Employment ActSection 18(5)(b)
  • Employment ActSection 50
  • Employment ActSection 28(2)
  • Employment ActSection 35(5) and (6)
  • Employment and Labour Relations ActSection 12
  • Constitution of KenyaArticle 41

Cases cited (13)

  • Ronald Nyambu Daudi v Tornado Carriers Limited
    Cause No. 236 of 2016
  • Simon Mbithi Mbane v Inter Security Services Limited
    [2018] eKLR
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
  • Kenfreight (E.A.) Limited v Benson K. Nguti
    [2016] eKLR
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    [2021] eKLR
  • Josephine M. Ndungu & others v Plan International Inc
    [2019] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Selle & Another v Associated Motor Boat Co. Ltd. & Others
    (1968) EA
  • Haji v Syed Hassan Zaidi t/a Imamia Electrical & Hardware
    [2023] KEELRC 1200 (KLR)
  • Ayub Kombe Ziro v Umoja Rubber Products Limited
    [2022] KEELRC 141 (KLR)
  • Ibia v Resort Kenya Limited
    [2022] KEELRC 1717 (KLR)
  • Kenya Ports Authority v Munyao & 4 others
    [2023] KESC 112 (KLR)
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

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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, "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.