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ELRCDismissedNot stated in the judgment provided (Memorandum of Appeal dated July 13, 2022)· [2025] KEELRC 516 (KLR)

Icom Engineering Co. Limited v Juma (Appeal 136 of 2022) [2025] KEELRC 516 (KLR)

Employment and Labour Relations Court
24 February 2025
4,305 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that firing a worker for 'absconding' without a show cause letter or hearing is unfair termination, and the employer pays.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Nairobi against the whole of the judgment of Honourable E. Kagoni (PM) delivered on 1st July 2022, in which the Claimant (now Respondent) had been awarded one month's salary in lieu of notice (Kshs 16,900), overtime (Kshs 224,640), unpaid leave (Kshs 81,900), housing allowance (Kshs 227,733.49), service pay (Kshs 50,700) and four months' salary as compensation for unfair termination (Kshs 67,600), plus a certificate of service, costs and interests. The Appellant, an employer, contended that the magistrate erred in finding unfair termination and in the quantum of each award. The appeal was disposed of by written submissions. The court framed two issues: whether the trial court erred in finding the termination unfair and unlawful, and whether it erred in awarding terminal dues. On the first issue, the court held the Appellant failed to prove on a balance of probabilities that the Respondent absconded duty, and that no show cause letter or disciplinary hearing was ever issued, violating the mandatory procedure under section 41 of the Employment Act; the termination was therefore substantively and procedurally unfair. On quantum, the court declined to disturb the discretionary awards absent misdirection, upheld the overtime, housing allowance, leave and service pay awards on the evidence, and held that the leave, housing allowance and overtime claims were continuing injuries filed within twelve months of cessation of employment under section 90 of the Employment Act. The court also noted the Respondent filed no cross-appeal for enhanced compensation. The appeal was dismissed with costs.

Key legal issues

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01

Whether the termination of the Respondent's employment was substantively and procedurally unfair

Holding

Yes. The Appellant failed to prove on a balance of probabilities that the Respondent absconded/deserted duty, and no show cause letter or disciplinary hearing was issued, violating section 41 of the Employment Act.

Reasoning

The Appellant alleged the Respondent absconded for two months, yet the Respondent stated he was terminated for objecting to a salary deduction of Kshs 1,500/=. Absconding constitutes gross misconduct under section 44(4)(a), but the employer must demonstrate intention not to return and must follow section 41 procedure, including a show cause letter and disciplinary hearing. No such steps were taken, so the termination was both substantively and procedurally unfair.

p. 6
02

Whether the trial court erred in the awards of terminal dues (notice pay, compensation, overtime, leave, housing allowance, service pay)

Holding

No. All awards were upheld; the compensation award of four months' salary was within the trial court's discretion, and the other awards were justified on the evidence.

Reasoning

The court would only disturb the awards if the trial court misdirected itself. Four months' compensation was reasonable under section 49(4); notice pay was justified under section 35; the Appellant produced no evidence that salary was consolidated to defeat the housing allowance claim under section 31; no attendance schedules or leave forms were produced; and NSSF/NHIF non-remittance entitled the Respondent to service pay.

p. 7
03

Whether the claims for leave, housing allowance and overtime were statute barred

Holding

No. These are continuing injuries under section 90 of the Employment Act, and the suit was filed within 12 months of cessation of employment.

Reasoning

Employment ended in September 2020 and the claim was filed in October 2020, within the 12-month period required by the proviso to section 90. Relying on G4S Security and The German School Society, the court held that claims based on a continuing wrong are not time barred where the breach creates a continuing source of injury.

p. 8

Legal principles established

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  • Unpaid leave, housing allowance and overtime claims are continuing injuries which must be filed within 12 months after cessation of employment under section 90 of the Employment Act.
  • Dismissal on account of absconding must be preceded by reasonable attempts to contact the employee and issuance of a show cause letter, and procedural fairness under section 41 is mandatory.
  • An appellate court will not interfere with the discretionary awards of the trial court unless satisfied the trial court misdirected itself and arrived at a wrong decision.

Court orders

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  1. 1.The Appeal is found unmerited and is hereby dismissed with costs
On appeal from
Magistrates' Court (trial court)
Jurisdiction invoked
First appeal to the Employment and Labour Relations Court against the judgment of the Principal Magistrate

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, "Icom Engineering Co. Limited v Juma (Appeal 136 of 2022) [2025] KEELRC 516 (KLR)", Case Analysis (2025). Not stated in the judgment provided (Memorandum of Appeal dated July 13, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/516/eng@2025-02-24

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