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ELRCPartially AllowedAppeal against CMELRC NO. E988 of 2021· [2025] KEELRC 1342 (KLR)

Ogayo v Zhejiang Chengjian Construction Africa Limited (Appeal E042 of 2023) [2025] KEELRC 1342 (KLR)

Employment and Labour Relations Court
9 May 2025
6,623 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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An employee who disappears from work for over four months without contact can be treated as having deserted the job, but unpaid wages must still be paid.

What this practically means

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Executive summary

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The appellant appealed the dismissal of his unfair termination claim by the Chief Magistrate's Court at Nairobi (Hon. C.K Cheptoo, P.M) in CMELRC No. E988 of 2021. He had been employed as a scar folder earning Kshs. 24,000 monthly, was arrested at work on 18 March 2020 over a suspected theft of a machine, recorded a police statement, and travelled upcountry without informing the employer during the Covid-19 lockdown, returning on 13 July 2020 to be told there was no job. The employer's position was that he absconded duty and switched off his phone. The appellant argued the employer had to comply with sections 41, 43, 45 and 47 of the Employment Act before treating desertion as closure of employment. On re-evaluation as a first appellate court (applying Selle v Associated Motor Boat Co. and Mbogo v Shah), the court agreed with the trial magistrate that the appellant failed to prove termination on a balance of probability; his phone remained off, he never reached out to the employer for over four months, and it was unreasonable to expect disciplinary proceedings where an employee cannot be reached, absconding being a ground of summary dismissal under section 44. However, the court found the employer admitted the appellant worked 18 days in March 2020 with no evidence those wages were paid, and awarded Kshs. 14,400/- under section 18(5) of the Act. Leave, public holiday pay and service pay claims failed (payslips proved payment; appellant was an NSSF member). The appeal partially succeeded with costs and interest from filing suit; the appellant also got costs of the appeal.

Key legal issues

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01

Whether the appellant was unfairly terminated or absconded duty

Holding

The trial court's finding that there was no proof of unfair termination was upheld; the appellant absconded duty and the employer's evidence that he switched off his phone was not controverted

Reasoning

On re-evaluation, the court found the appellant left upcountry after arrest without informing the employer, never reached out during four months, and switched off his phone. It was unreasonable to expect the employer to wait or conduct disciplinary proceedings when the employee could not be reached. Absconding without authority is a ground of summary dismissal under section 44 of the Employment Act.

p. 12
02

Whether the appellant was entitled to the reliefs sought

Holding

Only salary arrears for 18 days worked in March 2020 (Kshs. 14,400/-) were awarded; other reliefs of terminal benefits failed

Reasoning

The employer admitted the claimant was arrested at work on 18 March 2020 and was paid monthly, but there was no evidence wages for the 18 days worked in March had been paid. Under section 18(5) of the Employment Act, the employer should have remitted those wages. Leave, public holidays and service pay claims failed as payslips proved payment and the appellant was an NSSF member under section 35(6).

p. 12

Legal principles established

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  • Desertion being a unilateral act of abandonment cannot end a contract of service until the employer acts on it; but where an employee is unreachable and does not reach out for over four months, it is unreasonable to expect disciplinary proceedings and the employer may treat absconding as gross misconduct under section 44
  • Wages are only due for days worked unless the absence was justified; an employer must comply with section 18(5) of the Employment Act on payment of wages earned upon termination

Court orders

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  1. 1.The court interfered with the Judgment of the Chief Magistrate's Court delivered on 3rd March 2023 in Cause CMELRC NO. E988 of 2021 by award of salary arrears to the appellant for the sum of Kshs. 14,400/- with costs and interest from the date of filing suit
  2. 2.The appellant is awarded costs of the appeal

Authorities

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Legislation

  • Employment Act, 2007sections 35(6), 36, 40, 41, 43, 44, 45, 47(5), 18(5), 66, 67
  • Evidence Act, Cap 80 Laws of Kenyasections 107, 109
  • Constitution of Kenyaarticles 41 and 47

Cases cited (17)

  • Selle v Associated Motor Boat Co. Ltd
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA
  • James Okeyo v Maskant Flower Limited
    [2015] eKLR
  • Joseph Nzioka v Smart Coatings Limited
    [2017] eKLR
  • Julius Kyalo Malonza v Ruth Osolo t/a Eraeva Catering Services
    [2021] eKLR
  • Ronald Nyambu Daudi v Tornado Carriers Limited
    [2019]
  • Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited
    [2016] eKLR
  • Milano Electronics Limited v Dickson Nyasi Muhaso
    [2021] eKLR
  • Godfrey Anjere v Unique Suppliers Limited
    [2015] eKLR
  • National Bank of Kenya - vs - Samuel Nguru Mutonya
    (2019) eKLR
  • Janet Nyandiko versus Kenya Commercial Bank Limited
    [2017] eKLR
  • Owudu v Digital Sanitation Services Limited
    (Appeal E109 of 2023) [2024] KEELRC 917 (KLR)
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    [2021] eKLR
  • Josephine M. Ndungu & others v Plan International Inc
    [2019] eKLR
  • Solvit Security Solutions Limited v Masase
    [2023] KEELRC 2300 (KLR)
  • Ayub Kombe Ziro v Umoja Rubber Products Limited
    [2022] eKLR
On appeal from
Chief Magistrate's Court at Nairobi (Hon. C.K Cheptoo (P.M))
CMELRC NO. E988 of 2021
Jurisdiction invoked
First appellate jurisdiction of the Employment and Labour Relations Court over the Chief Magistrate's Court (ELRC)

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, "Ogayo v Zhejiang Chengjian Construction Africa Limited (Appeal E042 of 2023) [2025] KEELRC 1342 (KLR)", Case Analysis (2025). Appeal against CMELRC NO. E988 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1342/eng@2025-05-09

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