Muani v Epco Builders Limited (Employment and Labour Relations Appeal E080 of 2023) [2025] KEELRC 476 (KLR)
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
#Key legal issues
#Whether the termination on grounds of absconding duty was lawful and fair
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.
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.
Whether the trial court erred on the standard of proof
The trial court erred in applying a standard beyond the balance of probabilities.
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.
What reliefs were the appellant entitled to
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.
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.
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.Judgment and decree of Hon. B.M Cheloti (SRM) in CMEL No. E541 of 2022 delivered 5 May 2023 set aside and substituted
- 2.A declaration that the summary dismissal was unlawful and unfair
- 3.Notice pay in lieu of Kshs. 29,100
- 4.Compensation for unlawful and unfair termination of Kshs. 291,000
- 5.Unpaid house allowance of Kshs. 226,980
- 6.Untaken leave of Kshs. 30,555
- 7.Service pay of Kshs. 72,750
- 8.Sums payable subject of statutory deductions
- 9.Costs of the suit and interest at court rate until payment in full
- 10.Costs of the appeal to the Appellant
- 11.Stay of 30 days
- 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.
- Mas Intimates Kenya (EPZ) Limited v Ochieng (Employment and Labour Relations Appeal E012 of 2025) [2025] KEELRC 3708 (KLR)[2025] KEELRC 3708 (KLR)17 Dec 2025
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.