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ELRCPartially AllowedKisii ELRCC Appeal (Judgment of Evans Ondieki Kebasi V The Guardian Coach Kisii CMELRCC No. 40 of 2023)· [2025] KEELRC 1308 (KLR)

Guardian Coach Limited v Kebasi (Appeal E078 of 2024) [2025] KEELRC 1308 (KLR)

Employment and Labour Relations Court
8 May 2025
2,790 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a first appeal from the judgment of Hon. B. O. Omwansa, S.P.M delivered on 12th November 2024 in Kisii CMELRCC No. 40 of 2023, in which the respondent, a driver employed from 15th February 2021, was awarded pay in lieu of notice, severance pay for three years, annual leave and general damages after finding his termination unfair. The appellant contended that the respondent deserted duty and challenged both the findings and the awards. Gakeri J, reappraising the evidence as a first appellate court, held that the respondent's testimony that he was orally dismissed by the Kisii manager upon reporting back after illness was uncontroverted, and that the appellant, having adduced no evidence of efforts to contact the respondent or issue a show-cause notice, failed to prove desertion or a fair process; the termination was therefore unfair. The court upheld the award of one month's salary in lieu of notice but set aside the severance pay of Kshs.312,156 (payable only on redundancy), the annual leave award of Kshs.28,014 (unpleaded and unproved special damages) and the general damages of Kshs.100,000 (not an available remedy for breach of an employment contract). In their place it awarded compensation under Section 49 of the Employment Act equivalent to two months' salary, Kshs.40,000, considering the short duration of service and the respondent's contribution to the termination. A declaration of unfair termination was upheld, and each party was ordered to bear its own costs of the appeal.

Key legal issues

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01

Whether the respondent deserted duty or was dismissed

Holding

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

Reasoning

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.

p. 4
02

Whether the termination was fair

Holding

The termination was unfair, both substantively and procedurally, as the employer proved neither a valid reason nor a fair procedure

Reasoning

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.

p. 5
03

Appropriate remedy for unfair termination

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.A declaration that termination of the respondent's employment by the appellant was unfair
  2. 2.Severance pay for 3 years, Kshs.312,156.00 is set aside
  3. 3.Annual leave of Kshs.28,014.00 is set aside
  4. 4.The award of general damages Kshs.100,000.00 for breach of contract is set aside
  5. 5.The respondent is awarded the equivalent of two (2) month's compensation, Kshs.40,000.00
  6. 6.Any other award made by the trial court (including one month's salary in lieu of notice) is upheld
  7. 7.Each party shall bear its own costs of the appeal

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Employment ActSection 45(5)
  • Employment ActSection 40(1)
  • Employment ActSection 40(1)(g)
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 41
  • Employment ActSection 49
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (19)

  • Thomas De La Rue V David Opondo Omutetema
    [2013] eKLR
  • Heaton V Weitz
    534 F.3d 882891 (8th Sept. 2008)
  • D K Njagi Marete V Teachers Service Commission
    [2020] eKLR
  • RV Commissioner for Co-operatives ex parte Kirinyaga Tea Growers Co-operatives Savings and Credit Society Ltd
  • Macmillan Bloedel Ltd V Galiano Island Trust Committee
  • Selle & Another V Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
  • Abdul Hammed Saif V Ali Mohamed Sholan
    [1955] 22 E.A.C.A 270
  • Kirugi & Another V Kabiya
    [1987] KLR 347
  • Nicholus Kipkemoi Korir V Hatari Security Guards Ltd
    [2016]
  • Seabolo V Belgravia Hotel
    [1977] 6 BLLR 829 (CCMA)
  • Ronald Nyambu V Tornado Carriers Ltd
    [2019] eKLR
  • Felistas Acheha Ikatwa V Charles Peter Otieno
    [2018] eKLR
  • Simon Mbithi Mbane V Inter Security Services Ltd
    [2018] eKLR
  • Joseph Nzioka V Smart Coatings Ltd
    [2017] eKLR
  • Bonface Francis Mwangi V Iyego B.O.M Secondary School
    [2019] eKLR
  • Evans Ochieng Oluoch V Njimia Pharmaceuticals Ltd
    [2016] eKLR
  • Judith Atieno Owuor V Sameer Agriculture and Livestock Ltd
    [2020] eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    [2013] eKLR
  • Cleopatra Kama Mugenyi V Aidspan
    [2019] eKLR
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

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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, "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.