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ELRCPartially AllowedNairobi Employment and Labour Relations Court Appeal (memorandum of appeal dated 2nd November 2023)· [2025] KEELRC 1719 (KLR)

Lumbasi v Victory Consultants Limited (Employment and Labour Relations Appeal E222 of 2023) [2025] KEELRC 1719 (KLR)

Employment and Labour Relations Court
12 June 2025
JKJ.W. Keli
3,715 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that when an employee absconds, the employer must still follow proper termination procedures or the dismissal is unfair.

What this practically means

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Executive summary

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The appellant, a night security guard employed by the respondent on what the parties agreed was a one-year fixed term contract commencing 8th July 2019, appealed against the judgment of Honourable M.W. Murage (PM) delivered on 6th October 2023 in MCELRC No. 2325 of 2019, which dismissed his claim of unfair termination with costs. The claimant alleged his services were terminated on 27th September 2019 without valid reason or procedure; the respondent contended there was no termination at all, asserting the claimant absconded duty after abandoning a refresher training course following the end of the respondent's assignment at Ole Sereni Hotel. The trial court found the contract produced by the claimant blank as to name and unsigned, and dismissed the claim. On appeal, the court applied Selle v Associated Motor Boat Co. and, adopting the abscondment authorities relied on by the appellant, held that while the respondent never formally terminated the employment, it also failed to action the termination in accordance with section 41 of the Employment Act; desertion cannot itself close a contract of service until the employer acts on it. The termination was therefore held procedurally flawed and unfair. On reliefs, the court awarded notice pay, unpaid salaries for August and September 2019, 30 days' leave pay and underpayment totalling Kshs. 122,632.55 with interest from the date of filing suit, but refused the 10 months' salary claim (not a section 49 remedy), overtime/rest days/public holidays claims (unproved special damages) and compensation beyond notice pay. The appeal was allowed, the trial judgment set aside and substituted, with costs of the suit and appeal to the claimant/appellant and a 30-day stay granted.

Key legal issues

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01

Whether the appellant was unfairly terminated from employment

Holding

Though there was no formal termination by the respondent, the employment relationship ended through unilateral abandonment which the employer failed to action per section 41, rendering the termination procedurally unfair

Reasoning

The parties agreed the claimant was on a one-year fixed contract from 8th July 2019. The respondent pleaded abscondment but produced no notice to show cause, no disciplinary hearing, no termination letter and no efforts to trace the claimant. Relying on the abscondment authorities, the court held that desertion cannot itself close a contract; the innocent party must formally end it. Failure to follow section 41 rendered the termination procedurally flawed.

p. 6
02

Whether the blank, unsigned contract produced by the appellant had probative value

Holding

The contract filed in court did not have the claimant's name and was not signed by either party, hence of no probative value, though the employment relationship itself was not in dispute

Reasoning

The court found from the pleadings that the existence of the employment relationship was not in dispute. However, the document the claimant produced as his contract was blank as to name and unsigned by both parties, so it could not amount to evidence of employment terms. The start date of 8th July 2019 was taken from the pleadings and the trial court's finding.

p. 4
03

Which reliefs the appellant was entitled to

Holding

Notice pay, unpaid salaries for August and September 2019, leave pay and underpayment were awarded; 10 months' salary for the unexpired contract, overtime/rest days/public holidays and compensation beyond notice pay were refused

Reasoning

Claims not controverted by the respondent, who opted not to call a witness to produce employment records, were allowed: unpaid salary, notice pay, 30 days' leave and underpayment. The 10 months' salary claim was not a section 49 remedy, and overtime claims, being special damages, required proof of excess hours worked which was absent.

p. 7

Legal principles established

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  • Abscondment or desertion is a unilateral act of abandonment that cannot close a contract of service until the employer acts on it in accordance with section 41 of the Employment Act
  • Where an employer pleads absconding as a defence, the burden lies on the employer to prove efforts to inform the employee of the intention to terminate and to bring the employment relationship to an end according to section 41 of the Employment Act
  • A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The appeal is allowed
  2. 2.The Judgment and Orders of the Honourable M.W. Murage (PM) delivered on 6th October 2023 in MCELRC No. 2325 of 2019 are set aside and substituted with judgment for the claimant against the respondent
  3. 3.Declaration that the termination is procedurally flawed
  4. 4.Notice pay of 1 month Kshs. 17,413.25
  5. 5.Unpaid salary for months of August and September 2019 Kshs. 26,675.80
  6. 6.Untaken leave of 30 days in lieu Kshs. 17,413.25
  7. 7.15 months gross salary underpayment Kshs. 61,130.25
  8. 8.Total sum award of Kshs. 122,632.55 with interest at court rate from date of filing suit
  9. 9.Costs of the suit to the claimant and costs of the appeal to the appellant
  10. 10.Stay of 30 days granted

Authorities

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Legislation

  • Employment Actsections 39, 40, 41, 42(2), 43(1), 44, 45(2), 47, 49, 50
  • Evidence Actsection 107
  • Regulation of Wages (General) (Amendment) Order2018

Cases cited (4)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Mbogo V Shah
    [1968] EA Page 93
  • Milano Electronics Limited v Dickson Nyasi Muhaso
    [2021] eKLR
  • James Okeyo v Maskant Flower Limited
    [2015] eKLR
On appeal from
Chief Magistrate's Court, Nairobi (Employment and Labour Relations)
MCELRC No. 2325 of 2019
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court in an employment and labour relations claim

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Lumbasi v Victory Consultants Limited (Employment and Labour Relations Appeal E222 of 2023) [2025] KEELRC 1719 (KLR)", Case Analysis (2025). Nairobi Employment and Labour Relations Court Appeal (memorandum of appeal dated 2nd November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1719/eng@2025-06-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.