Fontana Limited v Okumu (Appeal E027 of 2023) [2025] KEELRC 1574 (KLR)
The bottom line
#A Kenyan employer claiming an employee resigned or deserted work must prove it with records and evidence, or the dismissal will be ruled unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's termination was unfair and unprocedural
The Appellant failed to prove resignation or desertion, and did not follow the procedure in Sections 41 and 45 of the Employment Act; the termination was unfair and unprocedural.
The court found the Appellant failed to prove that the Respondent resigned or deserted work. The alleged resignation letter was unaddressed and unacknowledged, and the employer, who had the upper hand, had a statutory duty to keep employee records. No communication followed the arrest, no disciplinary hearing was conducted, and no written termination letter with valid reasons was issued, contravening Sections 41 and 45 of the Employment Act.
Whether the reliefs awarded by the trial court were appropriate
Notice pay and 12 months' compensation upheld; September 2018 salary awarded; leave days and underpayment claims declined as unproved.
Having agreed with the trial court on unfair termination, the court found some reliefs excessive. Leave days and underpayment were not supported by evidence. Notice pay and compensation were retained, and September 2018 salary was added, producing a total of Kshs.194,144.30 with costs and interest at 14% per annum.
Legal principles established
#- For a termination to be fair there must be both substantive justification and procedural fairness
- An employer alleging desertion must demonstrate efforts made to get the employee to resume duty
- The employer bears the burden of proving valid reason and fair procedure
Court orders
#- 1.Appeal against the finding of unfair termination dismissed
- 2.One month salary in lieu of notice upheld at Kshs.14,401/10
- 3.September 2018 salary awarded at Kshs.6,930
- 4.Claim for leave days not granted for lack of evidence
- 5.Compensation for 12 months allowed at Kshs.172,813.20
- 6.Underpayment claim of Kshs.226,451/05 declined
- 7.Costs of the lower court and of the appeal granted to the Respondent
- 8.Total award of Kshs.194,144.30 plus costs and interest at 14% per annum from the date of judgment until payment in full
- On appeal from
- Chief Magistrate's Court
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction over the decision of the Chief Magistrate's Court in an employment claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fontana Limited v Okumu (Appeal E027 of 2023) [2025] KEELRC 1574 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1574/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.