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ELRCPartially AllowedCause No 296 of 2017· [2025] KEELRC 1249 (KLR)

Kibisu v Bird (Cause 296 of 2017) [2025] KEELRC 1249 (KLR)

Employment and Labour Relations Court
30 April 2025
BMB. O. M. Manani
2,077 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who claims a worker absconded must still prove they tried to follow fair disciplinary procedures, or pay compensation for unfair termination.

What this practically means

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Executive summary

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The Claimant, a domestic worker, sued the Respondent alleging that her employment, which she said began in August 1999, was terminated on 7th August 2016 without lawful cause or notice, and claiming unpaid wages, overtime pay, service pay, house allowance and vacation pay. The Respondent's defence was that the Claimant first worked for the Respondent's mother until 2001, was re-hired in February 2008 at a net monthly salary of Ksh. 12,000.00, and left employment of her own accord in June 2016 after being confronted over the theft of USD 450 from the Respondent's son, of which she returned only USD 150. The Respondent also contended that the Claimant took her annual leave or was paid in lieu, and was housed. The court framed two issues: whether the employment was unfairly terminated, and whether the Claimant was entitled to the reliefs sought. On the evidence, the court held that although the Respondent asserted the Claimant left and never returned, she produced no evidence of efforts to trace the Claimant so as to take her through the disciplinary process under sections 41, 43 and 45 of the Employment Act, and therefore did not ensure due process. The court awarded compensation of Ksh. 80,000.00 and service pay of Ksh. 80,000.00 (fifteen days' salary per year for eight years), both subject to statutory deductions and carrying interest at court rates from the date of the decision. Claims for house allowance, leave pay, unpaid salary and overtime were declined for want of proof and admissions. Costs were awarded to the Claimant. Judgment was delivered online on 30th April 2025 by B. O. M. Manani, J.

Key legal issues

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01

Whether the Claimant's employment was unfairly terminated

Holding

The Respondent unfairly terminated the employment because it did not afford the Claimant due process under sections 41, 43 and 45 of the Employment Act

Reasoning

Although the Respondent asserted the Claimant left employment after being confronted over an alleged theft, it produced no evidence of efforts made to trace her so that she could answer to the charges. The court held that an employer cannot avoid the disciplinary process obligation by simply asserting that the employee absconded or terminated her own services.

p. 3
02

Entitlement to compensation for unfair termination

Holding

Compensation equivalent to four months' gross salary (Ksh. 80,000.00) awarded, based on a monthly salary of Ksh. 20,000.00 and eight years of service

Reasoning

Having found unfair termination, the court invoked section 49 of the Employment Act. The Claimant's asserted salary of Ksh. 20,000.00 was uncontroverted under section 10(7). Considering the length of the employment relationship, the court awarded four months' salary as compensation, subject to statutory deductions and interest.

p. 4
03

Entitlement to service pay

Holding

Service pay of Ksh. 80,000.00 awarded, being fifteen days' salary for each of eight years worked

Reasoning

Section 35(5) of the Employment Act entitles an employee who was not a member of a pension or provident fund or NSSF contributor to service pay. No evidence showed membership of such schemes. Applying case law, service pay was computed at fifteen days' salary (Ksh. 10,000.00) per year for the approximately eight years served.

p. 4
04

Claims for house allowance, leave pay, unpaid salary and overtime

Holding

All declined for want of proof and admissions by the Claimant

Reasoning

The Claimant admitted she was housed, conceded partial leave-taking without accounting for the days, and tendered no evidence on unpaid salary and overtime. A chit produced by the Respondent showing commutation of leave was not controverted on the pleadings, the Claimant having filed no reply to the defence.

p. 5

Legal principles established

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  • An employer alleging that an employee absconded or deserted duty must demonstrate reasonable efforts to trace the employee so that the employee can answer to charges; an employer cannot escape the disciplinary process obligation by merely asserting abscondment.
  • Under sections 41, 43 and 45 of the Employment Act, the burden lies on the employer to prove that an employee was notified of an infraction and given an opportunity to respond before termination.
  • Where the employer fails to produce employment records, the employee's uncontroverted assertion of salary is accepted under section 10(7) of the Employment Act.
  • Service pay is computed at fifteen days' salary for every year worked where the employee was not a member of a pension or provident fund or NSSF contributor.

Court orders

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  1. 1.The court finds that the Respondent improperly terminated the contract between the parties.
  2. 2.The court awards the Claimant compensation for the unfair termination of her contract in the sum of Ksh. 80,000.00.
  3. 3.The court awards the Claimant service pay of Ksh. 80,000.00.
  4. 4.The award is subject to the applicable statutory deductions.
  5. 5.The court declines the Claimant's prayers for house allowance, leave pay, unpaid salary and overtime pay.
  6. 6.The court awards the Claimant interest on the amount awarded at court rates from the date of this decision.
  7. 7.The court awards the Claimant costs of the case.

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 35(5)
  • Employment Actsection 49
  • Employment Actsection 10(7)
  • ELRC Procedure RulesRule 28(3)

Cases cited (2)

  • David Opondo Onyango v Apex Steel Limited
    [2022] eKLR
  • George M. Kirungaru v Next Generation Communications Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (original jurisdiction over employment disputes)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kibisu v Bird (Cause 296 of 2017) [2025] KEELRC 1249 (KLR)", Case Analysis (2025). Cause No 296 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1249/eng@2025-04-30

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