Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedAppeal against judgment in CMEL No. E541 of 2022· [2025] KEELRC 476 (KLR)

Muani v Epco Builders Limited (Employment and Labour Relations Appeal E080 of 2023) [2025] KEELRC 476 (KLR)

Employment and Labour Relations Court
20 February 2025
6,065 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court confirmed employers can't fire staff for 'absconding' without proving they tried to contact them first.

What this practically means

#

Executive summary

#
The appellant, a former driver of the respondent, appealed against the decision of the Chief Magistrate's Court (Hon. B.M Cheloti, SRM) dismissing his claim for unlawful and unfair termination, save for a certificate of service. He was involved in a road traffic accident on 9 February 2019, informed his transport manager, and received Kshs 2,000 from him via MPESA; he was summarily dismissed for absconding duty by a letter dated 21 March 2019 which he received on resuming duty on 16 May 2019. The court on first appeal, applying Selle v Associated Motor Boat Co., identified two issues: whether the trial court erred in finding the termination lawful and fair, and entitlement to reliefs. It held that the trial court misapplied the standard of proof by requiring proof 'beyond balance of probability' rather than on a balance of probabilities. The appellant discharged his burden under section 47(5) of the Employment Act through unobjected-to hospital records and MPESA evidence showing he notified his supervisor. Following New World Stainless Steel and related authorities, the court held that an employer alleging absconding must demonstrate efforts to reach the employee and comply with section 41's notice and hearing requirements; the respondent produced no such evidence. The termination was declared unlawful and unfair. On reliefs, applying section 49(4) criteria, the court awarded 10 months' salary compensation (Kshs 291,000), one month's notice pay (Kshs 29,100), house allowance of Kshs 226,980 at 15% of basic salary, untaken leave limited to 18 months (Kshs 30,555), and service pay at 15 days per year for five years (Kshs 72,750). The lower court's judgment was set aside and substituted, with costs of the suit and appeal to the appellant and a 30-day stay.

Key legal issues

#
01

Whether the termination on grounds of absconding duty was lawful and fair

Holding

The termination was unlawful and unfair: the appellant proved he notified his supervisor of the accident, and the respondent produced no evidence of any effort to reach the appellant or give him notice under section 41 before terminating him.

Reasoning

Under sections 43, 45(2) and 47(5) of the Employment Act, the employee bears the burden of proving unfair termination on a balance of probabilities, after which the employer must justify the reason and procedure. The appellant produced uncontroverted hospital records and MPESA evidence showing he informed his boss of the accident. Relying on New World Stainless Steel and related authorities, the court held that an employer alleging absconding must show efforts to reach the employee and comply with section 41's notice and hearing requirements. No such evidence existed, so the dismissal failed both the substantive and procedural fairness tests.

p. 9
02

Whether the trial court erred on the standard of proof

Holding

The trial court erred in applying a standard beyond the balance of probabilities.

Reasoning

The trial magistrate had held that the claimant failed to prove unfair termination 'beyond a balance of probability'. The court corrected this, reiterating that employment claims are civil claims governed by the balance of probabilities standard, and found the appellant had discharged his burden under section 47(5) through unobjected-to documentary evidence from a public hospital.

p. 8
03

What reliefs were the appellant entitled to

Holding

The appellant was awarded 10 months' salary compensation, one month's notice pay, 18 months' leave in lieu, house allowance at 15% of basic salary for the employment period, and service pay at 15 days per year worked.

Reasoning

Applying section 49(4) criteria, the court noted the appellant's roughly five years of service, absence of prior warnings, invalid reason for termination, no notice or hearing, and difficulty of a driver in securing equivalent employment, awarding 10 months' compensation. Leave was limited to 18 months under section 28(4); house allowance was uncontroverted given the respondent's failure to produce employment records under section 74; service pay was due under section 35(6) absent evidence of NSSF membership.

p. 10

Legal principles established

#
  • An employer alleging that an employee has absconded duty must show efforts made to reach out to the employee to put them on notice that termination on that ground is being considered, consistent with section 41 of the Employment Act.
  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness.
  • The standard of proof in employment claims is on a balance of probabilities, not beyond.
  • Absconding or desertion is distinguishable from absenteeism: a deserting employee has the intention not to return to work, which the employer must demonstrate from the facts.

Court orders

#
  1. 1.Judgment and decree of Hon. B.M Cheloti (SRM) in CMEL No. E541 of 2022 delivered 5 May 2023 set aside and substituted
  2. 2.A declaration that the summary dismissal was unlawful and unfair
  3. 3.Notice pay in lieu of Kshs. 29,100
  4. 4.Compensation for unlawful and unfair termination of Kshs. 291,000
  5. 5.Unpaid house allowance of Kshs. 226,980
  6. 6.Untaken leave of Kshs. 30,555
  7. 7.Service pay of Kshs. 72,750
  8. 8.Sums payable subject of statutory deductions
  9. 9.Costs of the suit and interest at court rate until payment in full
  10. 10.Costs of the appeal to the Appellant
  11. 11.Stay of 30 days

Authorities

#

Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 43
  • Employment Actsection 41
  • Employment Actsection 47(5)
  • Employment Actsection 44(4)
  • Employment Actsection 49(1)
  • Employment Actsection 49(4)
  • Employment Actsection 28(4)
  • Employment Actsection 31
  • Employment Actsection 35(6)
  • Employment Actsection 74
  • Evidence Actsections 107, 108 and 109
  • Retirement Benefits Actreferenced in section 35(6) extract

Cases cited (11)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • New World Stainless Steel Limited v Cosmas Mbaulu Munyasya
    (2021) eKLR
  • Seablo v Belgravaia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Banking, Insurance & Finance Union (Kenya) v Barclays Bank of Kenya Ltd
    [2014] eKLR
  • SACWU v Dyasi
    [2001] 7 BLLR 731 (LAC)
  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    [2015] eKLR
  • Dickson Matingi v Db Schenker Limited
    [2016] eKLR
  • Wanyera v Central Isiolo Investment Limited
    (Appeal E002 of 2023) [2024] KEELRC 596 (KLR)
  • Mulyanga v Zitron Limited
    (Cause 876 of 2018) [2023] KEELRC 2400 (KLR)
  • Henry Shikoli Milimu v Hypermart Limited
    [2021] eKLR
On appeal from
Chief Magistrate's Court
CMEL No. E541 of 2022
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court in an employment claim (Employment and Labour Relations Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Muani v Epco Builders Limited (Employment and Labour Relations Appeal E080 of 2023) [2025] KEELRC 476 (KLR)", Case Analysis (2025). Appeal against judgment in CMEL No. E541 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/476/eng@2025-02-20

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