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ELRCPartially AllowedMCELRC Appeal (Nairobi) filed 16th April 2024 re: MCELRC No. 314 of 2022· [2025] KEELRC 2040 (KLR)

Kayu Cleaning Services Limited v Ongoche (Appeal E122 of 2024) [2025] KEELRC 2040 (KLR)

Employment and Labour Relations Court
4 July 2025
2,565 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

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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

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Machakos (J.W. Keli, J) against the judgment of Hon. B. Kasavuli (SPM) delivered on 3rd April 2024 in MCELRC No. 314 of 2022, which had partially allowed the claimant's claim and awarded Kshs. 237,749.60. The appellant employer contended that the respondent was not terminated but absconded, and that the damages awarded were excessive. The respondent had claimed a declaration of unlawful termination, notice pay, compensation for wrongful dismissal, underpayment, public holidays and overtime pay. The court, applying Selle v Associated Motor Boat Co., re-evaluated the evidence and found the claimant had absconded for two days without permission, but the employer admitted it neither issued a notice to show cause nor produced call logs or text messages showing efforts to contact her; following Simon Mbithi Mbane v Inter Security Services Limited, the finding of unfair termination was upheld. Rejecting the appellant's reliance on section 45(3) of the Employment Act, the court held, citing Monica Munira Kibuchi & 6 others v Mount Kenya University, that all employees, including probationers, are entitled to fair labour practices. On quantum, notice pay (Kshs. 13,572.90) and underpayment (Kshs. 61,301.90) were upheld, but the maximum 12 months' compensation was found excessive; applying section 49(4) factors (11 months' service, the claimant's contribution to termination, underpayment and lack of social security), compensation was reduced to 3 months' wages (Kshs. 40,718.70). The appeal was partially allowed, the trial judgment set aside and substituted with a total award of Kshs. 115,593.50 with interest at court rate, a certificate of service to issue, each party bearing their own costs in the appeal, and a 30-day stay granted.

Key legal issues

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01

Whether termination of the respondent's employment was unfair

Holding

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

Reasoning

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.

p. 4
02

Whether an employee with less than 13 months' service is entitled to compensation for unfair termination

Holding

Yes - the section 45(3) threshold does not defeat compensation; all employees, including probationers, are entitled to fair labour practices

Reasoning

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.

p. 5
03

Whether the reliefs awarded by the trial court were merited and correctly quantified

Holding

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

Reasoning

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).

p. 6

Legal principles established

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  • 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

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  1. 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. 2.Termination held unfair
  3. 3.Notice pay of Kshs. 13,572.90
  4. 4.Salary compensation equivalent of 3 months salary Kshs. 40,718.70
  5. 5.Underpayment (back pay) Kshs. 61,301.90
  6. 6.Total sum of Kshs. 115,593.50 awarded with interest at court rate from date of judgment
  7. 7.Certificate of service to issue under section 51 of the Employment Act
  8. 8.Each party to bear own costs in the appeal
  9. 9.Stay of 30 days

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 45(3)
  • Employment Actsection 49(4)
  • Employment Actsection 35
  • Employment Actsection 42(1)
  • Employment Actsection 51
  • Constitution of Kenya, 2010Articles 10, 25, 41, 47 and 50
  • Regulation of Wages (General) Amendment Order2018

Cases cited (4)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA Page 93
  • Simon Mbithi Mbane v Inter Security Services Limited
    (2018) eKLR
  • Monica Munira Kibuchi & 6 others v. Mount Kenya University
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

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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, "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.