Kayu Cleaning Services Limited v Ongoche (Appeal E122 of 2024) [2025] KEELRC 2040 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee for absconding is unfair unless the employer can prove it genuinely tried to reach them first.
What this practically means
#Executive summary
#Key legal issues
#Whether termination of the respondent's employment was unfair
The finding of unfair termination by the trial court was upheld; the employer did not comply with section 41 of the Employment Act before terminating on grounds of absconding
Upon re-evaluation of the evidence, the claimant admitted being away from work without permission, supporting absconding. However, the employer admitted it did not issue a notice to show cause nor produce call logs or text messages evidencing attempts to contact her. Citing Simon Mbithi Mbane v Inter Security Services Limited, an employer alleging absconding must demonstrate efforts to contact the employee. Having failed to do so, the termination was procedurally unfair and the trial court's finding was upheld.
Whether an employee with less than 13 months' service is entitled to compensation for unfair termination
Yes - the section 45(3) threshold does not defeat compensation; all employees, including probationers, are entitled to fair labour practices
The appellant argued that section 45(3) of the Employment Act bars employees with less than 13 months' service from complaining of unfair termination. The court held, relying on Monica Munira Kibuchi & 6 others v Mount Kenya University (which declared section 42(1) unconstitutional to the extent it excludes probationers from section 41), that all employees are entitled to fair labour practices and compensation remained available.
Whether the reliefs awarded by the trial court were merited and correctly quantified
Notice pay and underpayment upheld; maximum 12 months' compensation found excessive and reduced to 3 months' wages under section 49(4) of the Employment Act
Notice pay of Kshs. 13,572.90 under section 35 and underpayment of Kshs. 61,301.90 (difference between Kshs. 8,000 paid and the lawful minimum wage of Kshs. 13,572.90 for 11 months) were upheld. Maximum compensation of 12 months was excessive given 11 months of service, the claimant's contribution to the termination, underpayment and lack of social security; applying section 49(4) factors, compensation was fixed at 3 months' wages (Kshs. 40,718.70).
Legal principles established
#- An allegation that an employee has absconded duties calls upon the employer to reasonably demonstrate that efforts were made to contact the employee without success, in compliance with section 41 of the Employment Act
- Every employee, including those on probation, is entitled to fair labour practices
- A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, while making allowance for not having seen or heard the witnesses
Court orders
#- 1.The judgment and orders of the Honourable B. Kasavuli (SPM) delivered 3rd April 2024 in MCELRC No. 314 of 2022 set aside and substituted
- 2.Termination held unfair
- 3.Notice pay of Kshs. 13,572.90
- 4.Salary compensation equivalent of 3 months salary Kshs. 40,718.70
- 5.Underpayment (back pay) Kshs. 61,301.90
- 6.Total sum of Kshs. 115,593.50 awarded with interest at court rate from date of judgment
- 7.Certificate of service to issue under section 51 of the Employment Act
- 8.Each party to bear own costs in the appeal
- 9.Stay of 30 days
- On appeal from
- Principal Magistrate's Court, Nairobi (Hon. B. Kasavuli, SPM)
- MCELRC No. 314 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the Principal Magistrate's Court (Employment and Labour Relations cause) - appeal under the memorandum of appeal dated 16th April 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kayu Cleaning Services Limited v Ongoche (Appeal E122 of 2024) [2025] KEELRC 2040 (KLR)", Case Analysis (2025). MCELRC Appeal (Nairobi) filed 16th April 2024 re: MCELRC No. 314 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2040/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.