Ogayo v Zhejiang Chengjian Construction Africa Limited (Appeal E042 of 2023) [2025] KEELRC 1342 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the appellant was unfairly terminated or absconded duty
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
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.
Whether the appellant was entitled to the reliefs sought
Only salary arrears for 18 days worked in March 2020 (Kshs. 14,400/-) were awarded; other reliefs of terminal benefits failed
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).
Legal principles established
#- 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
#- 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.The appellant is awarded costs of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.