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ELRCPartially AllowedNot stated in the judgment· [2025] KEELRC 199 (KLR)

Central Furniture Shop Limited v Mohamed (Appeal E097 of 2023) [2025] KEELRC 199 (KLR)

Employment and Labour Relations Court
30 January 2025
MMM. Mbarũ
2,320 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that claiming an employee abandoned their job does not end the employment unless the employer follows proper disciplinary procedure.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa (M. Mbarũ, J) against the judgment of the learned magistrate in Mombasa CMELRC No. 256 of 2020 delivered on 29 August 2023. The respondent, a heavy commercial truck driver engaged at Ksh.30,000 per month from 11 February 2017, claimed he was verbally terminated on 23 May 2020 without notice, hearing or terminal dues, and sought declarations and monetary awards including underpayments, compensation, notice pay, service pay, leave, overtime and house allowance. The appellant employer contended that the respondent abandoned the motor vehicle KAW 680J at Jomvu Shell petrol station on 17/18 May 2020, absented himself for 108 days and thus deserted his employment. The magistrate found unfair termination for lack of due process and awarded various sums, declining overtime and public holiday claims for lack of proof. On appeal, the court reaffirmed that an employer alleging abandonment bears the burden of proof; desertion does not end a contract until the employer acts on it through notice and disciplinary channels under Sections 41 and 44 of the Employment Act, failing which recourse lies under Section 18(5). The appeal succeeded only in part: the separate award of house allowance was set aside as duplicative of the underpayments award, which already incorporated the 15 percent house allowance. The judgment was reviewed, declaring the termination unlawful and awarding underpayments of Ksh.203,679.94, eight months' compensation of Ksh.281,780, notice pay of Ksh.35,222.56 and accrued leave of Ksh.49,311.36, with trial court costs as awarded and each party bearing its own costs of the appeal.

Key legal issues

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01

Whether the respondent's employment was terminated by abandonment/desertion

Holding

No; the employer must act on desertion through due process before the contract can be taken to have ended

Reasoning

Desertion is a unilateral act that does not by itself close the contract. The employer claiming abandonment must prove reasonable steps to locate the employee and require resumption of duty, and must address unexplained absenteeism through internal disciplinary channels including notice under Sections 41 and 44 of the Employment Act. The Master Roll entry alone was insufficient; no such steps were taken here.

p. 4
02

Whether termination was unfair for lack of due process

Holding

Yes; the trial court's finding of unfair termination was upheld

Reasoning

Sections 41 and 44 of the Employment Act required notice to the employee to attend and address the alleged gross misconduct, and thereafter a notice terminating employment. The employer left the respondent at large without any such notice, so compensation and notice pay were justified. Absence from work as gross misconduct requires that the employee be notified to attend and be heard.

p. 4
03

Whether the award of house allowance was correct

Holding

Erroneous; house allowance was already included in the underpayments computation

Reasoning

The due wage under the Wage Orders included a 15 percent house allowance amounting to Ksh.4,594.20, making the gross salary Ksh.35,222. Since the award of Ksh.203,679.84 in underpayments already included the due house allowance, awarding house allowance separately amounted to double allocation, which the appellate court removed.

p. 5
04

Whether the claims for overtime, public holidays and service pay were proved

Holding

No; overtime and public holidays were declined for lack of proof, and service pay was not due given NSSF compliance

Reasoning

The respondent merely generalized that he worked from 7 a.m. to 10 p.m. for seven days a week, which the court found implausible for a heavy commercial driver who took 21 leave days. Public holiday claims had to be specified and were not. On service pay, the employer produced NSSF and NHIF registration records, showing statutory compliance that disentitles the employee to service pay.

p. 5

Legal principles established

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  • An employer alleging abandonment of duty bears the burden of proof, and abandonment alone does not terminate the contract until the employer acts on it
  • The employer must take reasonable steps to trace the employee and address absenteeism through internal disciplinary channels before treating the contract as terminated
  • Where an employee cannot be traced, the notice terminating employment may be submitted to the Labour Office under Section 18(5) of the Employment Act

Court orders

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  1. 1.A declaration that termination of employment was unlawful
  2. 2.Underpayments Ksh.203,679.94
  3. 3.8 months compensation Ksh.281,780
  4. 4.Notice pay Ksh.35,222.56
  5. 5.Accrued leave days Ksh.49,311.36
  6. 6.Costs of the trial court as awarded; each party to bear its own costs for the appeal

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 44
  • Employment ActSection 18(4)
  • Employment ActSection 18(5)

Cases cited (8)

  • Kenfreight (E.A) Limited v Benson K. Nguti
    [2019] eKLR
  • Co-operative Bank of Kenya Ltd v BIFU (Kenya)
    [2017] eKLR
  • David Gichana Omuya v Mombasa Maize Millers Ltd
    [2014] eKLR
  • Prof. Macha Isunde v Lavington Security Guards Limited
    [2017] eKLR
  • Kenya Ports Authority v Munyao & 4 others
    Petition E008 of 2023
  • Ayub Kombe Ziro v Umoja Rubber Products Limited
    [2022] KEELRC 141 (KLR)
  • Kitumu v Simba Apparel Epz Limited
    [2023] KEELRC 1666 (KLR)
  • Ronald Odeke v Fidelity Security Limited
    Cause No.1998 of 2011
On appeal from
Magistrates' Court (ELRC), Mombasa
Mombasa CMELRC No. 256 of 2020
Jurisdiction invoked
First appeal from the magistrates' court (ELRC jurisdiction); no specific constitutional or statutory provision invoked in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Central Furniture Shop Limited v Mohamed (Appeal E097 of 2023) [2025] KEELRC 199 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/199/eng@2025-01-30

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