Kotecha Wholesellers v Ochieng (Appeal E063 of 2023) [2025] KEELRC 1398 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the respondent absconded duty or was unfairly terminated
The appellant failed to establish absconding or a fair disciplinary process; the finding of unfair termination was affirmed
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.
Quantum of compensation for unfair termination
Maximum 12 months' compensation without justification was set aside and reduced to three months' gross salary under Section 49(4) of the Employment Act
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.
Legal principles established
#- 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
#- 1.The award for untaken leave days for 4 years is set aside
- 2.The award of damages for loss of employment is set aside
- 3.The award for overtime and holidays is set aside
- 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.Each party shall bear own costs of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.