Guardian Coach Limited v Kebasi (Appeal E078 of 2024) [2025] KEELRC 1308 (KLR)
The bottom line
#A Kenyan court confirmed that claiming an employee deserted duty means nothing without proof the employer tried to contact them, and slashed most of the worker's award.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent deserted duty or was dismissed
The plea of desertion failed because the appellant adduced no evidence of steps taken to contact the respondent; the respondent's testimony of oral dismissal was uncontroverted
Desertion requires intention not to return, and the employer must show reasonable efforts to contact the employee and issue a show-cause notice. Neither Mr. Maragia nor Mr. Ongera testified; RWI did not corroborate desertion. The uncontroverted evidence was that the Kisii manager orally dismissed the respondent when he reported to resume duty after illness.
Whether the termination was fair
The termination was unfair, both substantively and procedurally, as the employer proved neither a valid reason nor a fair procedure
Under Sections 43 and 45 of the Employment Act the employer must prove valid and fair reasons and a fair procedure, while Section 47(5) places only a prima facie burden on the employee. Having failed to prove desertion or any fair process, the separation was unfair, though for different reasons from the trial court.
Appropriate remedy for unfair termination
General damages of Kshs.100,000 set aside; compensation equivalent to two months' salary (Kshs.40,000) awarded under Section 49, considering the short service and the respondent's contribution
General damages do not exist as a remedy for breach of an employment contract. Having found unfair termination, Section 49 was triggered. Weighing the 2-year-and-2-month duration, absence of recorded warnings, the respondent's contribution to the termination and his failure to appeal or seek reinstatement, two months' salary was fair.
Legal principles established
#- An employer relying on desertion must demonstrate reasonable efforts to contact the employee and issue at least a notice to show cause before termination
- General damages are not an available remedy for breach of an employment contract; the statutory remedy is compensation under Section 49 of the Employment Act
- Severance pay under Section 40 of the Employment Act is payable only on redundancy
- On a first appeal the court re-evaluates the evidence and draws its own conclusions
Court orders
#- 1.A declaration that termination of the respondent's employment by the appellant was unfair
- 2.Severance pay for 3 years, Kshs.312,156.00 is set aside
- 3.Annual leave of Kshs.28,014.00 is set aside
- 4.The award of general damages Kshs.100,000.00 for breach of contract is set aside
- 5.The respondent is awarded the equivalent of two (2) month's compensation, Kshs.40,000.00
- 6.Any other award made by the trial court (including one month's salary in lieu of notice) is upheld
- 7.Each party shall bear its own costs of the appeal
- On appeal from
- Chief Magistrate's Court (Kisii)
- CMELRCC No. 40 of 2023
- Jurisdiction invoked
- First appeal from the Chief Magistrate's Court under the Employment and Labour Relations Court's jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Guardian Coach Limited v Kebasi (Appeal E078 of 2024) [2025] KEELRC 1308 (KLR)", Case Analysis (2025). Kisii ELRCC Appeal (Judgment of Evans Ondieki Kebasi V The Guardian Coach Kisii CMELRCC No. 40 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1308/eng@2025-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.