Koreche v SGS Kenya Limited (Cause 1959 of 2016) [2025] KEELRC 1486 (KLR)
The bottom line
#An employer who dismisses an employee for absconding without first hearing their side must pay compensation, even if the employee may have stayed away.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the dismissal of 26th February 2016
The dismissal was procedurally unfair as the Claimant was not heard before dismissal for absconding duty
Section 41 of the Employment Act requires an employer to notify the employee and hear representations before terminating on grounds of misconduct. Absconding duty is misconduct, yet the Respondent issued the dismissal letter without any hearing or opportunity to make representations. No attempt at fair process was made, rendering the dismissal procedurally unfair.
Substantive justification for the dismissal
The Respondent failed to prove that the reason for dismissal (absconding) was valid and fair
The Claimant produced a gate pass and RW1 confirmed on cross-examination that he reported back to work on 28th January 2016 but was not allowed to work. This corroborated his claim that he reported as directed but was turned away. The Respondent's ground of absconding was therefore unsupported and the reasons for dismissal were not reasonable, fair or justified.
Quantum of compensation
Three months' salary (Kshs. 240,000) awarded as compensation for unfair dismissal
The contract in force at termination was a fixed-term contract of three months, so the Claimant had no legitimate expectation of serving longer. Guided by Anytime Limited v Fredrick Mutobera Omuraya, an award of twelve months would be disproportionate; three months' salary was deemed sufficient compensation.
Status of the first termination of 31st December 2015
The first termination was withdrawn and the court did not dwell on it; the effective termination was that of 26th February 2016
The Respondent withdrew the 31st December 2015 termination letter and required the Claimant to report back to work, which the Claimant acknowledged. The live dismissal was therefore the letter of 26th February 2016 premised on absenteeism/failure to return to work, and that is what the court assessed.
Legal principles established
#- Absconding duty is an act of misconduct requiring compliance with Section 41 of the Employment Act before dismissal
- Failure to comply with Section 41 renders a dismissal procedurally unfair
- The employer bears the burden of proving valid and fair reasons for termination under Sections 43, 45 and 47(5)
Court orders
#- 1.A declaration that the Claimant's dismissal was unfair
- 2.The Respondent to pay the Claimant three months' salary as compensation for the unfair dismissal at Kshs. 240,000/=.
- 3.The Respondent to bear the costs of the suit
- 4.Interest on the compensation and costs at court rate from the time of filing suit until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koreche v SGS Kenya Limited (Cause 1959 of 2016) [2025] KEELRC 1486 (KLR)", Case Analysis (2025). ELRC Cause (Memorandum of Claim dated 16th September 2016, filed 17th September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1486/eng@2025-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.