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ELRCPartially AllowedAppeal against Kisumu CMELRC No. E004 of 2021· [2025] KEELRC 1398 (KLR)

Kotecha Wholesellers v Ochieng (Appeal E063 of 2023) [2025] KEELRC 1398 (KLR)

Employment and Labour Relations Court
14 May 2025
4,145 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that claiming an employee deserted duty does not excuse an employer from following a fair disciplinary process before firing them.

What this practically means

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Executive summary

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This is an appeal from the judgment of K. Cheruiyot, SPM in Kisumu CMELRC No. E004 of 2021, which found that Kotecha Wholesalers Ltd had not proved that its driver, Caleb Ochieng, absconded duty on 2nd December 2020, held his termination unlawful and unprocedural, and awarded him Kshs.649,600 as prayed. Gakeri J, applying the first appellate duty in Selle v Associated Motor Boat Co Ltd, re-evaluated the evidence. The court affirmed the finding of unfair termination: the employer's letters asserting desertion were written only after a demand letter was received, no notice to show cause was issued, no verifiable steps were taken to trace the employee, and evidence that the respondent reported to the premises and was denied access was uncontroverted. The court held that absence alone is not desertion; the employee's intention not to return must be demonstrated, and a fair disciplinary process under Section 41 of the Employment Act is unavoidable even in desertion cases. However, the court found the trial court's blanket award of all claimed reliefs without reasons disturbing and interfered with quantum. The awards for untaken leave, damages for loss of employment (no such remedy existing under the Employment Act), overtime and holidays were set aside. Compensation under Section 49(4) was reduced from the maximum 12 months to three months' gross salary (Kshs.58,800), considering the 4.5 years' service, a prior warning for absenteeism and the failure to appeal. The total award became Kshs.98,000, comprising notice pay and November 2020 salary. The appeal was declared partially successful, with each party bearing its own costs. Judgment delivered virtually at Kisumu on 14th May 2025.

Key legal issues

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01

Whether the respondent absconded duty or was unfairly terminated

Holding

The appellant failed to establish absconding or a fair disciplinary process; the finding of unfair termination was affirmed

Reasoning

The court found the letters evidencing desertion were written only after a demand letter was received, the employer took no verifiable steps to trace the employee or issue a notice to show cause, and uncontroverted evidence showed the respondent reported to the premises and was denied access. Absence alone does not amount to desertion; the employee's intention not to return must be demonstrated, and Section 41 process is indispensable.

p. 6
02

Quantum of compensation for unfair termination

Holding

Maximum 12 months' compensation without justification was set aside and reduced to three months' gross salary under Section 49(4) of the Employment Act

Reasoning

The trial court awarded the maximum 12 months' compensation without assigning any justification, inviting interference with its discretion. Considering the respondent's service of about 4.5 years, a prior warning for absenteeism, his apology, and his failure to appeal or express a wish to remain, three months' gross salary (Kshs.58,800) was fair.

p. 8

Legal principles established

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  • When an employer alleges desertion or absconding, it must demonstrate the reasonable steps taken to ascertain the employee's whereabouts and issue a notice to show cause; absent such steps, the employment relationship remains unclosed and termination cannot be justified
  • The provisions of the Employment Act require that an employee be subjected to a fair disciplinary process before separation even in cases of desertion
  • Absence from work does not of itself constitute desertion; desertion must be demonstrated by the employee's manifested intention not to return
  • A first appellate court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The award for untaken leave days for 4 years is set aside
  2. 2.The award of damages for loss of employment is set aside
  3. 3.The award for overtime and holidays is set aside
  4. 4.Total award of Kshs.98,000.00 (salary in lieu of notice Kshs.19,600, November 2020 salary Kshs.19,600, and compensation equivalent of three months' gross salary Kshs.58,800)
  5. 5.Each party shall bear own costs of the appeal

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Employment ActSections 41, 43, 44, 45, 46
  • Employment ActSection 49(4)
  • Employment ActSection 41
  • Employment and Labour Relations Court Act
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (19)

  • Ann Njoroge V Topez Petrolemum Ltd
    [2013] eKLR
  • Eastern Produce (K) Ltd V John Lumumba Mukosero
    Eldoret Civil Appeal No. 25 of 1998
  • David Getare Nyangau V Houseman General Contractors Ltd
    [2013] eKLR
  • John Mutsumi David V Delta Guards Ltd
    [2016] eKLR
  • John Kebaso Mose V Uchumi Supermarket
    [2018] eKLR
  • Selle and another V Associated Motor Boat Co. Ltd
    [1968] EA 123
  • Peters V Sunday Post
    [1958] EA 424
  • Mursal & another (suing as the Legal Administrator of Dalphine Kanini Manesa
    [2022] KEHC 282 (KLR)
  • Odhiambo V Siri Gudwara Ramgarhia Railway
    [2023] KEELRC 2587 KLR
  • Ronald Nyambu Daudi V Tornado Carriers Ltd
    [2019] eKLR
  • Mwangi Odhiambo Duncan V Crest Security Services 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
    [2018] eKLR
  • Judith Atieno Owuor V Sameer Agricultural and Livestock
    [2002] eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    [2013] eKLR
  • Seabolo V Belgravia Hotel
    [1997] 6 BLLR 829 (CC MA)
  • Price and another V Hilder
    [1996] KLR 95
  • United India Insurance Co. Ltd, Kenindia Insurance Co. Ltd and Oriental Fire and General Insurance Co. Ltd V East African Underwriters (Kenya) Ltd
    [1985] eKLR
On appeal from
Chief Magistrate's Court (Employment and Labour Relations), Kisumu
CMELRC No. E004 of 2021
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's judgment in CMELRC No. E004 of 2021 (Employment and Labour Relations Court)

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, "Kotecha Wholesellers v Ochieng (Appeal E063 of 2023) [2025] KEELRC 1398 (KLR)", Case Analysis (2025). Appeal against Kisumu CMELRC No. E004 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1398/eng@2025-05-14

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