Achola v Kigen (Chairman Moses Wambugu & Albert Mavutha, Residents' Association Being Sued on their Own Behalf and on Behalf of Pioneer Phase II Estate) (Employment and Labour Relations Appeal E340 of 2024) [2025] KEELRC 1515 (KLR)
The bottom line
#A Kenyan court ruled that even a worker who abandons his job is still entitled to proper notice and statutory dues from the employer.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant's employment was fairly terminated
The court found the claimant absconded duty and was not terminated as alleged, but the respondent failed to comply with section 41 of the Employment Act, entitling him to notice pay
On re-evaluation of the evidence, the court agreed with the trial court that the claimant, having been summoned to a meeting and failing to appear, absconded; the evidence that he had taken up work at a neighbouring residence was persuasive. However, the employer was still bound to issue a notice of termination under section 41. Failure to do so entitled the claimant to one month's notice pay even though the claimant's own misconduct of absconding and moonlighting barred compensation and overtime claims.
Whether the trial court erred in failing to consider the reliefs sought
The court held that the trial court erred by not analysing the reliefs, and proceeded to consider and award some heads of claim itself
The court held that the trial court's failure to consider the reliefs was an error: remedies such as salary arrears, leave pay, service pay, house allowance and underpayments are assessable even where the separation is not an unfair termination. On the evidence, house allowance was statutory and could not be treated as consolidated given below-minimum pay; service pay was due for 7 completed years as no NSSF contributions were shown; underpayments were awarded from the pleaded dates; and 18 months' leave was awarded for want of leave records.
Whether the claims for overtime, public holidays and underpayments were proved
Overtime and public holiday claims failed for lack of proof and because of moonlighting; underpayment was allowed as the court found the claimant was paid below the applicable wages orders
The court accepted the respondent's submission that a claimant must prove overtime and public holiday claims with mathematical specificity, and denied both heads on account of the claimant's moonlighting. On underpayment, the court invoked section 26 of the Employment Act and Regulation 3 of the Regulation of Wages Order, 1982, finding the claimant was paid below the relevant wages orders as pleaded and awarding back pay from 1st November 2011 to 31st July 2019.
Legal principles established
#- An employer alleging desertion must demonstrate reasonable efforts to contact the employee and must nonetheless comply with section 41 before ending the employment relationship
- Where an employer fails to comply with section 41 of the Employment Act, the employee is entitled to notice pay even where the employee absconded
- No employer should pay below the minimum wage even if the employee agreed to take the lower wages
Court orders
#- 1.Appeal allowed; judgment and order of H. M. Ng'ang'a (PM) delivered 16 March 2023 in MCELRC No. 2333 of 2019 set aside and substituted
- 2.Finding that there was no procedural fairness in ending the employment relationship
- 3.Notice pay in lieu of Kshs. 12,926.55
- 4.Leave pay for 18 months of Kshs. 19,389.82
- 5.Housing allowance of Kshs. 178,386.39
- 6.Service pay for 7 complete years of Kshs. 62,644.05
- 7.Underpayments from 1st November 2011 to 31st July 2019 of Kshs. 431,663.85
- 8.Total award of Kshs. 705,010.66 with interest at court rate from judgment date
- 9.Issuance of a Certificate of Service under Section 51 of the Employment Act
- 10.Costs of the suit to the claimant and costs of the appeal to the appellant
- 11.Stay of 30 days granted
- On appeal from
- Chief Magistrate's Court at Nairobi (Employment and Labour Relations)
- MCELRC No. 2333 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the magistrate's court (Employment and Labour Relations Court Act; memorandum of appeal dated 28 November 2024)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Achola v Kigen (Chairman Moses Wambugu & Albert Mavutha, Residents' Association Being Sued on their Own Behalf and on Behalf of Pioneer Phase II Estate) (Employment and Labour Relations Appeal E340 of 2024) [2025] KEELRC 1515 (KLR)", Case Analysis (2025). Employment and Labour Relations Appeal (Nairobi) arising from MCELRC No. 2333 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1515/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.