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 AllowedMCELRC/E1603/2021 (Appeal)· [2025] KEELRC 2154 (KLR)

Chitiavi v Musyoka & another (Appeal E180 of 2023) [2025] KEELRC 2154 (KLR)

Employment and Labour Relations Court
18 July 2025
JKJ. W. Keli
3,802 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

Kenyan employers cannot treat a worker as having abandoned their job without formally acting under the Employment Act; silence means the dismissal is unfair.

What this practically means

#

Executive summary

#
This was a first appeal to the Employment and Labour Relations Court from the judgment of Hon. G.A. Omodho (PM) delivered on 8th September 2023 in MCELRC/E1603/2021, which had partly allowed a domestic worker's (nanny's) claim by awarding service pay for two years and April 2021 salary. The appellant, Fibi Shisia Chitavi, appealed on grounds that the magistrate erred in finding she was lawfully terminated for abscondment, ignoring sections 41, 43, 45, 47 and 49 of the Employment Act, and in failing to award all remedies. The respondent did not respond to the appeal. Guided by Selle v Associated Motor Boat Co. and Mbogo v Shah on the rehearing role of a first appellate court, the court framed two issues: whether the trial court erred in finding no unfair dismissal, and whether it erred in determining relief. The court found the respondent's account that the claimant worked until 9th June 2021 and absconded deliberately misleading, since a demand letter for termination dated 25th April 2021 was served and acknowledged before the police report of 9th June 2021. Relying on authorities including James Okeyo v Maskant Flower Limited and Godfrey Anjere v Unique Suppliers Limited, the court held that desertion cannot close a contract until the employer acts under section 44, and no disciplinary process was ever invoked. The trial court's finding was set aside and substituted with a finding of unfair dismissal. The court awarded three months' salary as compensation (Kshs. 36,000), notice pay (Kshs. 12,000), service pay (Kshs. 12,000) and April salary (Kshs. 4,462.54), totaling Kshs. 64,462.54 with interest, and costs of the suit, while making no order as to costs on appeal given the domestic worker context. Claims on underpayment, leave and overtime were not disturbed. The appeal was allowed.

Key legal issues

#
01

Whether the claimant was unfairly dismissed or absconded duty

Holding

The finding of abscondment was untrue and the claimant's testimony that she was fired on 15th April 2021 was more probable than not; the termination was unfair and unlawful

Reasoning

The demand letter for termination was issued on 25th April 2021 and acknowledged on 25th May 2021, before the police OB of 9th June 2021, making it impossible for the claimant to have worked up to 9th June 2021. The respondent gave no valid reason for termination and never invoked section 44 or conducted any disciplinary process. The trial court's reliance on the later police report was erroneous.

p. 6
02

Whether the trial court erred in determination of relief

Holding

Three months' salary compensation, notice pay and April salary awarded in addition to service pay upheld; underpayment, leave and overtime claims not interfered with

Reasoning

The court considered the two-year period of work, the tedious nature of in-house nanny work and the absence of special skills in awarding three months' salary as sufficient compensation. Notice pay was awarded under section 35. Service pay of Kshs. 12,000 and April salary were upheld; claims not challenged on appeal could not be raised in submissions.

p. 6

Legal principles established

#
  • An employer cannot simply plead abandonment/desertion without taking steps under section 44 of the Employment Act to bring the contract to closure
  • In a dismissal on account of absconding duties, the employer must show the steps it took to warn the employee of dismissal for unauthorized absenteeism
  • The employer bears the burden under sections 41, 43 and 45 of the Employment Act to prove valid reason and fair procedure for termination

Court orders

#
  1. 1.The termination is held as unfair and unlawful
  2. 2.Compensation for unfair dismissal awarded for the sum equivalent of 3 months salary of Kshs. 36,000
  3. 3.Notice pay of Kshs. 12,000
  4. 4.Service pay of Kshs. 12,000
  5. 5.Unpaid April salary of Kshs. 4,462.54
  6. 6.Total sum of Kshs. 64,462.54 awarded with interest at court rate from date of judgment until payment in full
  7. 7.Costs of the suit
  8. 8.No order as to costs on appeal
  9. 9.Judgment and Decree of the Hon. G.A. Omodho (PM) delivered on 8th September, 2023 set aside and substituted

Authorities

#

Legislation

  • Employment Act 2007Sections 35, 36, 40, 41, 42(1), 42(2), 43(1), 44, 44(4)(a), 45, 45(2), 47, 49, 66, 67

Cases cited (7)

  • Selle v Associated Motor Boat Co.
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA 93
  • Kenfreight (E.) Limited v Benson K. Nguti
    (2019) eKLR
  • Milano Electronics Limited v Dickson Nyasi Muhaso
    [2021] eKLR
  • James Okeyo v Maskant Flower Limited
    [2015] eKLR
  • Godfrey Anjere v Unique Suppliers Limited
    [2015] eKLR
  • Paul Mwakio v Reliable Freight Services Ltd
    [2022] eKLR
On appeal from
Magistrates' Court (ELRC at Machakos)
MCELRC/E1603/2021
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court (Employment and Labour Relations Court appeal from PM's judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Chitiavi v Musyoka & another (Appeal E180 of 2023) [2025] KEELRC 2154 (KLR)", Case Analysis (2025). MCELRC/E1603/2021 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2154/eng@2025-07-18

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