Musyimi v Kleen Homes Security Services Limited (Employment and Labour Relations Appeal E143 of 2024) [2025] KEELRC 1826 (KLR)
The bottom line
#Kenya's Employment Court ruled that firing a worker for absconding without proving efforts to contact them is unfair termination, awarding the watchman over Kshs 449,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's witness statement proceeded unchallenged
Having been adopted as evidence by consent without cross-examination, the statement remained unchallenged, with weight left to the trial court.
The court reviewed the lower court proceedings. Counsel for the Respondent elected to rely on responses, witness statements and documents without calling a witness, and counsel for the Appellant did not object to adoption of the documents. In the absence of cross-examination, the averments in the statement remained unchallenged; it was for the trial court to weigh the relevance and weight to attach to the defence.
Whether the Appellant was unfairly terminated
The termination was unfair; the trial court's contrary finding was set aside.
The Respondent asserted the Appellant absconded after 42 days' leave. However, the letter to the labour officer disclosed no efforts to contact the Appellant to return to work, and the employer, which had a duty under section 74 to keep employee records including contact details, gave no notice of termination for absconding. Section 41 procedure was not followed, so the trial court's finding of no unfair termination was erroneous.
Entitlement to reliefs
Notice pay, 5 months' compensation, underpaid salary and housing allowance awarded; NSSF, overtime, public holidays, rest days, leave, severance and leave travelling allowance claims failed.
The Appellant had worked slightly over 5 years, was unpaid for 3 months and had no prior disciplinary issues, justifying 5 months' gross salary compensation. Notice pay was awarded for lack of procedural fairness. The underpayment claim, anchored in the Regulation of Wages (General) Order and the 2018 Minimum Wages Order, was undisputed and granted, as was housing allowance at 15% of basic minimum wage. Overtime, public holiday and rest day claims failed for lack of specificity.
Legal principles established
#- An allegation of absconding requires the employer to demonstrate reasonable efforts to contact the employee before terminating for absconding.
- A claim for overtime and public holiday pay must be pleaded and proved with specificity of the days worked, not merely asserted as global figures.
- Underpayment of wages contrary to statutory minimum wage orders may be claimed notwithstanding agreement on a lower salary.
Court orders
#- 1.The termination is held as unfair.
- 2.Notice pay of Kshs 17,413.24 awarded.
- 3.Compensation for unfair termination equivalent of 5 months gross salary granted for Kshs. 87,066.20.
- 4.Underpaid salary of Kshs. 221,110.20 awarded.
- 5.Unpaid housing allowance of Kshs. 81,766.53 awarded.
- 6.Total sum of Kshs. 449,264.87 awarded with interest at court rate from date of judgment.
- 7.Costs of the suit to the Appellant.
- 8.Costs of the appeal awarded to the appellant.
- 9.Stay of 30 days granted.
- 10.Judgment and Decree of the Honourable S.A. Opande (PM) delivered 30th April 2024 set aside and substituted.
- On appeal from
- Principal Magistrate's Court, Nairobi (Employment and Labour Relations)
- MCELRC No. E1482 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the Principal Magistrate's Court (Employment and Labour Relations Court appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musyimi v Kleen Homes Security Services Limited (Employment and Labour Relations Appeal E143 of 2024) [2025] KEELRC 1826 (KLR)", Case Analysis (2025). MCELRC Appeal filed 15th May 2024 (arising from Nairobi MCELRC No. E1482 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1826/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.