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ELRCPartially AllowedAppeal No E189 of 2024· [2025] KEELRC 1780 (KLR)

Moyo v Texas Alarms [K] Limited (Appeal E189 of 2024) [2025] KEELRC 1780 (KLR)

Employment and Labour Relations Court (first appellate court)
12 June 2025
OKOcharo Kebira
2,714 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan employer claiming an employee deserted duty must prove it with real evidence like call logs, or the termination will be ruled unfair.

What this practically means

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Executive summary

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This is a first appeal to this Court against a Magistrates' Court judgment in an employment claim. The Respondent (Claimant) alleged he was an alarm response crew member employed from 29th September 2017 at a monthly salary of KShs. 14,000, whose employment was verbally and unfairly terminated on 10 January 2022 after illness-related absences; he claimed notice pay, compensation, unpaid house allowance, leave, overtime, NHIF and service pay. The Appellant (employer) contended he deserted duty and absconded from 10 January 2022, and that show cause and warning letters were issued and served on the Labour Office. The trial Magistrate found the termination unfair and awarded one month's notice, unpaid house allowance of KShs. 212,100, six months' salary compensation and costs. On appeal, the Court reappraised the evidence as first appellate court while reminding itself it neither saw nor heard the witnesses. It held the employer failed to prove desertion: alleged phone calls were unsupported by call logs, no letter was sent to the Respondent's known postal address, and service of the show cause letter was not proved. The employer therefore failed under sections 43 and 45(2) of the Employment Act, and section 41 procedure was not shown to have been followed. The six months' compensation and notice pay were undisturbed. The pay slips were found doubtful and, absent an employment contract, house allowance was deemed unpaid — but the award was reduced from KShs. 212,100 to Kshs. 152,000 to reflect 6, not 8, years of service. The appeal succeeded only to that limited extent, with each party bearing its own costs of the appeal.

Key legal issues

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01

Whether the Respondent deserted duty or was unfairly terminated

Holding

The trial Magistrate did not err; the employer failed to prove desertion, and the employment was verbally and unfairly terminated

Reasoning

The employer's claim of repeated phone calls was unsupported by call logs; the show cause letter's service on the employee was not proved; no letter was sent to the employee's known postal address before the show cause letter. The employer therefore failed to prove the reason for termination under section 43 and validity under section 45(2), and did not demonstrate compliance with the mandatory procedure in section 41 of the Employment Act.

p. 5
02

Whether the compensatory award of six months' gross salary under section 49(1)(c) was excessive

Holding

Not disturbed; the award was merited considering length of service and lack of employee contribution to the termination

Reasoning

The discretionary power under section 49(1) depends on the circumstances of each case. Considering the length of employment and that the employee did not contribute to the termination in any proven manner, the six months' compensation was appropriate and not excessive.

p. 6
03

Whether the house allowance was paid and whether the award was correctly quantified

Holding

House allowance was not paid, but the award was exaggerated as it assumed 8 rather than 6 years of service; reduced to Kshs. 152,000

Reasoning

The pay slips were doubtful — none reflected the pleaded gross salary of KShs. 14,900 and no consistent percentage was applied to the house allowance item; without an employment contract proving salary was inclusive of house allowance, the Court found house allowance was not paid. However, the Respondent worked 6 years, not 8, so the award was reduced accordingly.

p. 6

Legal principles established

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  • An employer asserting that an employee deserted duty must prove it took steps to contact the employee, inquire into the absence, and warn of disciplinary action
  • Assertions of attempted contact (e.g. phone calls) unsupported by call logs or other evidence amount to bald assertions
  • A party alleging service of a document bears the burden of proving it

Court orders

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  1. 1.The trial Court's Judgment is disturbed only to the extent that the amount awarded under the head 'unpaid house allowance' is reduced to Kshs. 152,000
  2. 2.Each party is to bear its costs of this appeal

Authorities

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Legislation

  • Employment Act (Chapter 226) Revised Edition 2012Section 47(5)
  • Employment ActSection 43
  • Employment ActSection 45(2)
  • Employment ActSection 44(4)
  • Employment ActSection 41
  • Employment ActSection 49(1) and 49(1)(c)

Cases cited (2)

  • Musera v Mwechelesi & Another
    [2007] KLR
  • Richard Maingi v Wells Fargo Limited
    [2017] eKLR
On appeal from
Magistrates' Court (employment claim)
Not stated
Jurisdiction invoked
First appellate jurisdiction over an employment dispute decided by the trial Magistrate's Court

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, "Moyo v Texas Alarms [K] Limited (Appeal E189 of 2024) [2025] KEELRC 1780 (KLR)", Case Analysis (2025). Appeal No E189 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1780/eng@2025-06-12

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