Mutua v Mars Security Guards Limited (Employment and Labour Relations Appeal E067 of 2024) [2025] KEELRC 1832 (KLR)
The bottom line
#A Kenyan court ruled that calling an employee an absconder without first trying to contact them is unfair termination, awarding the worker over Kshs. 230,500.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the appellant was fair
The termination was unfair; the employer's letter reporting the claimant as having absconded amounted to termination without complying with section 41 of the Employment Act, and the later resignation letter was overtaken by events
The claimant was sent on leave on 14 March 2022 and not recalled. The employer's letter of 28 April 2022 to the labour office treated his employment as ended for absconding but disclosed no efforts to reach him. Section 41 procedural requirements were not met. The resignation letter of 8 August 2022 came after the effective termination date. The trial court's contrary finding was set aside.
What remedies flow from the unfair termination
Notice pay of one month (Kshs. 20,500) and compensation of 10 months' gross salary (Kshs. 205,000) awarded under section 49 of the Employment Act, together with refund of uniform deductions of Kshs. 5,000
On finding unfair termination, section 49 remedies apply. The court considered the claimant's 7 years of service and his illness from cold exposure, rendering him unlikely to work as a night guard again, and guided by comparable awards of other courts, settled on 10 months' gross salary. The uniform deduction was refunded as conceded.
Whether the claimant was entitled to overtime, rest days, public holidays, housing allowance and severance
These heads failed: overtime was paid per contract; rest days and public holidays were not strictly proved; housing was included in the contract salary; severance applies only on redundancy
The court declined to re-write the parties' contract which had consolidated pay covering overtime and housing. Claims for public holidays and rest days must be strictly proved and no evidence supported them. Severance under section 42 of the Employment Act is only payable in redundancy, which this was not.
Legal principles established
#- Where an employer alleges an employee absconded, the employer must demonstrate efforts to contact the employee and must follow section 41 of the Employment Act before terminating
- An employer bears the duty under section 74 of the Employment Act to keep employee records including contact details
Court orders
#- 1.Judgment and Decree of the Honourable L. Ambasi (CM) delivered 12 March 2024 in MCELRC No. E2041 of 2022 set aside
- 2.Declaration that the termination was unfair
- 3.Notice pay of 1 month's salary Kshs. 20,500
- 4.Compensation for unfair termination of 10 months' gross salary, Kshs. 205,000
- 5.Refund of uniform deductions Kshs. 5,000
- 6.Interest on the total sum of Kshs. 230,500 at court rates from date of judgment
- 7.Costs of the suit in the lower court to the appellant
- 8.Costs of the appeal to the appellant
- 9.Stay of 30 days granted
- On appeal from
- Chief Magistrate's Court, Nairobi (Employment and Labour Relations)
- MCELRC No. E2041 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court (ELRC) appeal against judgment in MCELRC No. E2041 of 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutua v Mars Security Guards Limited (Employment and Labour Relations Appeal E067 of 2024) [2025] KEELRC 1832 (KLR)", Case Analysis (2025). Appeal from MCELRC No. E2041 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1832/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.