Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Appeal from CMEL Cause No. E1223 of 2021· [2025] KEELRC 2030 (KLR)

Kenafric Bakery Limited v Wanyama & 2 others (Employment and Labour Relations Appeal E256 of 2023) [2025] KEELRC 2030 (KLR)

Employment and Labour Relations Court
4 July 2025
JKJ. W. Keli
2,532 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled employers cannot fire workers for absconding without proving they tried to reach them, but cut the payout by excluding overtime from the salary used.

What this practically means

#

Executive summary

#
This is a first appeal to the Employment and Labour Relations Court at Machakos against the judgment of Hon. R. L. Musiega (SRM) delivered on 17 November 2023 in CMEL Cause No. E1223 of 2021, in which three claimants were awarded notice pay, salary arrears, accrued leave and 12 months' salary as compensation for unfair dismissal. The employer appealed, contending the trial court ignored evidence of efforts to trace claimants alleged to have deserted duty, erred in awarding leave and April 2021 salary arrears, and used an unsupported salary multiplier of Kshs. 25,000 instead of the actual gross pay of Kshs. 17,636. Guided by Selle v Associated Motor Boat Co. and Mbogo v Shah, the court re-evaluated the evidence. It upheld the finding of unfair termination: the reason of absconding was not proved, no show-cause letters, notices or disciplinary hearing were evidenced, and the claimants' claim that they were verbally dismissed by the Production Manager was uncontroverted, the manager having not testified. However, the court found error in the salary multiplier, holding that overtime varies and should be excluded, so compensation was computed on basic pay plus house allowance of Kshs. 17,636. The accrued leave award was also set aside and substituted with 18 months' accrued leave under section 28(4) of the Employment Act. The appeal was allowed: the trial judgment was set aside and substituted with a total award of Kshs. 167,542 per claimant with interest, costs of the suit, and certificates of service within 14 days. No order was made on costs of the appeal.

Key legal issues

#
01

Whether the termination for absconding was substantively and procedurally fair

Holding

The alleged reason of absconding was not proved; no show-cause letters, notices or evidence of disciplinary hearing were produced, and the claimants' assertion that they were fired verbally by the Production Manager was uncontroverted. The termination was unfair and the trial court's finding was upheld.

Reasoning

Under sections 43 and 45(2) of the Employment Act the employer must prove a valid reason and fair procedure. DW1, the union official allegedly asked to call the claimants, had no evidence of making such calls and contradicted DW2 who claimed notices were sent by email but produced none. The manager alleged to have dismissed the claimants never recorded a statement. The burden of justifying termination rests on the employer and was not discharged on a balance of probability.

p. 5
02

Whether the trial court erred in using Kshs. 25,000 as the monthly salary multiplier

Holding

The trial court erred; the correct monthly salary was basic pay plus house allowance, Kshs. 17,636.00, as overtime varies and should be excluded. The awards were set aside and recalculated.

Reasoning

The payslips itemised gross pay as basic salary Kshs. 15,236 and housing Kshs. 2,400, with agreed overtime varying month to month. The figure of Kshs. 25,000 used by the trial court had no basis; the Kshs. 28,750 claimed by the claimants included overtime. For compensation purposes the correct figure is basic pay plus house allowance, i.e. Kshs. 17,636.00.

p. 6
03

Whether the award of accrued leave was merited

Holding

The employer did not rebut the claimants' evidence that they did not take leave, but the award was limited by section 28(4) of the Employment Act to leave accrued within 18 months; the trial court's award was set aside and substituted accordingly.

Reasoning

Section 28(4) of the Employment Act limits the carry-forward of accrued annual leave, requiring it to be taken not later than eighteen months from the end of the leave-earning period. Since the employer produced no evidence rebutting the claim that leave was not taken, entitlement was upheld but capped at 18 months' accrued leave days.

p. 6

Legal principles established

#
  • Even a deserting employee is entitled to a hearing and the employer must make reasonable attempts to contact the employee before termination.
  • The employer bears the burden of proving the reason for termination, failing which the termination is deemed unfair.
  • Overtime varies with extra work performed and should not be included in the monthly salary for purposes of computing compensation; basic pay plus house allowance is the correct measure.
  • Accrued leave carried forward is limited to 18 months from the end of the leave-earning period under section 28(4) of the Employment Act.

Court orders

#
  1. 1.Judgment and Orders of Hon. R. L. Musiega (SRM) delivered on 17th November 2023 in CMEL Cause No. E1223 of 2021 set aside and substituted
  2. 2.Termination of the claimants held unfair
  3. 3.Notice pay of Kshs. 17,636.00 to each of the 3 claimants
  4. 4.Salary arrears of Kshs. 17,636.00 to each of the 3 claimants
  5. 5.Accrued annual leave for 18 months - Kshs. 26,454
  6. 6.Compensation for unlawful termination of Kshs. 105,816
  7. 7.Total award to each of the 3 claimants of Kshs. 167,542 with interest at court rate from date of judgment
  8. 8.Costs of the suit
  9. 9.Certificate of service to issue to the 3 claimants under section 51 of the Employment Act within 14 days of the judgment
  10. 10.No order on costs at appeal; file marked as closed

Authorities

#

Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 41
  • Employment Actsection 47(5)
  • Employment Actsection 43
  • Employment Actsection 28(4)
  • Employment Actsection 51

Cases cited (4)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA Page 93
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Ramogi v Great Lakes University of Kisumu
    (Cause 2 of 2022) [2022] KEELRC 13032 (KLR) (2 November 2022)
On appeal from
Magistrates' Court (ELRC subordinate court)
CMEL Cause No. E1223 of 2021
Jurisdiction invoked
First appellate jurisdiction over CMEL Cause No. E1223 of 2021

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenafric Bakery Limited v Wanyama & 2 others (Employment and Labour Relations Appeal E256 of 2023) [2025] KEELRC 2030 (KLR)", Case Analysis (2025). ELRC Appeal from CMEL Cause No. E1223 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2030/eng@2025-07-04

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