Gathura v Waithaka t/a Wamukoko Gas Supplier (Cause 23 of 2016) [2025] KEELRC 1698 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was an employee of the Respondent
The Claimant proved on a balance of probability that he was an employee; the Respondent did not sufficiently controvert the evidence and had admitted desertion in his response
There was no documentary evidence on either side. The Respondent's plea that the Claimant was an independent contractor was not sufficiently backed; he did not deny paying salary and admitted in his response that the Claimant deserted duty. CW2, the doctor who treated the Claimant, confirmed the Respondent had presented the Claimant as his employee. Applying the contract of service versus contract for service distinction and the shifting evidential burden, the court found employment established.
Whether the Claimant was unfairly terminated
The termination was unlawful and unfair; the Respondent failed to prove desertion and did not comply with Section 41 of the Employment Act
The Respondent knew of the Claimant's injuries, having taken him to hospital and paid the bills, yet made no follow-up on his recovery and issued no show cause letter for alleged desertion. Absent proof of attempts to reach the employee, a desertion claim fails, and the procedural requirements of Section 41 were not met.
Whether the Claimant deserves the remedies sought
Notice pay, accrued leave and compensation awarded, but compensation limited to three months for the Claimant's contribution to the termination
The Respondent did not rebut the claim for terminal dues. Notice pay succeeded as none was given. Leave was uncontested and the Respondent, as custodian of employee records, failed to disprove it. Compensation under Sections 49 and 50 was reduced to three months' salary because the Claimant did not update the employer on his recovery.
Legal principles established
#- An employer claiming desertion must prove efforts to reach out to the employee before treating the employment as terminated
- An employee's failure to update the employer on recovery from injury may amount to contribution to termination, reducing compensation
Court orders
#- 1.Declaration that the Claimant's termination is unfair
- 2.One month's salary in lieu of notice at Kshs. 18,000/-
- 3.Three months' salary as compensation for the unfair termination at Kshs. 54,000/-
- 4.Payment on account of accrued leave for the year 2010 – 2014 at Kshs. 79,500/-
- 5.The Respondent shall bear costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination and terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gathura v Waithaka t/a Wamukoko Gas Supplier (Cause 23 of 2016) [2025] KEELRC 1698 (KLR)", Case Analysis (2025). Cause No 23 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1698/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.