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ELRCPartially AllowedELRC Appeal E003 of 2024 (Appeal from ELRC Cause No. E068 of 2022)

Colnet Limited v Kamau (Employment and Labour Relations Appeal E043 of 2024) [2025] KEELRC 2255 (KLR)

Employment and Labour Relations Court
29 July 2025
2,719 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a cleaner who skipped a disciplinary hearing deserted her job, so no unfair dismissal pay—but minimum wage underpayment was still owed.

What this practically means

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Executive summary

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The Appellant appealed against a judgment of the trial court in ELRC Cause No. E068 of 2022 delivered on 19th November 2024, which found that the Respondent, a Cleaner employed from 1st October 2021, had been constructively terminated and awarded her Kshs.141,048.79 comprising six months' salary as compensation for unfair termination, salary for days worked in May 2022, house allowance, salary underpayment for 8 months, and one month's salary in lieu of notice, plus certificate of service, costs and interest. The trial court's finding rested on the Respondent's evidence that on 11th May 2022 her supervisor took her uniform and sent her away. On appeal, the Appellant contended the Respondent was served with a show cause letter, failed to report to the HR Office in Nairobi, and absconded. Makau J, applying the Selle principles for a first appeal, found no termination letter existed, that the Respondent acknowledged receipt of a show cause letter but neither replied nor complied, could not be traced, and by filing suit demonstrated no intention to return. The court held the Respondent deserted employment to evade the disciplinary process and that unfair/constructive dismissal was not established. It set aside the awards for compensation for unfair termination (Kshs.75,136.20) and one month's salary in lieu of notice (Kshs.12,522.70), but affirmed the awards for salary for 11 days worked, underpayment and house allowance, holding that minimum wage rates under the Wages (General) Order 2018 and section 48(1) of the Labour Institutions Act cannot be defeated by a consolidated salary contract. The appeal was allowed to that extent with each party bearing own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondent deserted employment or she was dismissed by the appellant.
  2. 2.If the answer to (a) above is dismissal, whether the same was unfair and unlawful.
  3. 3.Whether the award of damages by the trial court should stand.

Key legal issues

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01

Desertion versus dismissal

Holding

The respondent was not dismissed; she deserted employment to evade disciplinary process, so the trial court erred in finding constructive/unfair dismissal.

Reasoning

There was no termination letter; instead a show cause letter dated 11th May 2022 was served and acknowledged. The respondent neither responded nor reported to the HR Office in Nairobi, could not be reached by phone, and filed suit claiming terminal dues, evidencing no intention to return. The employer made efforts to have her heard, reporting to the Labour Office and writing to her advocate.

p. 5
02

Minimum wage underpayment and house allowance

Holding

The trial court's awards of salary for 11 days worked (Kshs.4,591), underpayment (Kshs.15,027.24) and house allowance (Kshs.33,781) were upheld as founded on evidence and law.

Reasoning

Nyeri, being a former municipality, attracted a minimum monthly salary of Kshs.12,522.70 under the Wages (General) Order 2018. Section 48(1) of the Labour Institutions Act renders minimum rates established in a wages order terms of employment that may not be varied by agreement, and such terms are substituted into the contract where the contract provides less.

p. 5
03

Mandate of the first appellate court

Holding

As a first appellate court, the ELRC re-evaluates the evidence and draws its own conclusions, with allowance for not having seen or heard the witnesses.

Reasoning

Relying on Selle v Associated Motor Boat Company Ltd, the court reaffirmed that a first appeal is by way of retrial: the appellate court must consider and evaluate the evidence itself, but is not bound by the trial court's findings of fact where those findings fail to account for particular circumstances or probabilities.

p. 4

Legal principles established

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  • Where an employee frustrates the disciplinary process and deserts employment, the employer cannot be faulted for the termination; an employee who squanders the chance to be heard cannot claim the process was unfair.
  • Minimum wages established in a wages order constitute a term of employment and cannot be varied by agreement, even where the employee signed a consolidated salary contract.

Court orders

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  1. 1.The award of Kshs.75,136.20 being compensation for unfair termination is set aside.
  2. 2.The award of Kshs.12,522.70 being one-month salary in lieu of notice is set aside.
  3. 3.The rest of the awards in the impugned judgment are not disturbed.
  4. 4.Each party bears own costs of the appeal and the court below.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court (trial cause)
ELRC Cause No. E068 of 2022
Jurisdiction invoked
First appeal to the ELRC against a subordinate court/tribunal judgment in an employment cause

Relief refused

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Setting aside of the entire judgment of the trial court and substitution with an order dismissing the suit with costs

The appeal only partially succeeded; awards for salary for days worked, salary underpayment and house allowance were affirmed

p. 6

Costs of the appeal to the Appellant

Appeal substantially succeeded but the court directed each party to bear own costs

p. 6

Costs

Each party bears own costs of the appeal and the court below.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The awards of kshs.75,136.20 being compensation for unfair termination and Kshs.12,522.70 being one-month salary in lieu of notice are hereby set aside.
p. 6Final orders - setting aside of awards
The rest of the awards in the impugned judgment are not disturbed.
p. 6Final orders - awards preserved
In my considered view, the respondent, voluntarily terminated her employment contract to evade the disciplinary process initiated by appellant.
p. 5Desertion evading disciplinary process
Even if the respondent signed a contract for consolidated salary of Kshs.8,327, that does not defeat her claim for the correct minimum wages under the Labour Institutions Act.
p. 5Minimum wages not waivable by contract
Since the appeal has substantially succeeded, I direct that each party bears own costs of the appeal and the court below.
p. 6Costs

Issues in the judgment

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minor

The total award is stated inconsistently in the judgment: Kshs.141,048.79 in the memorandum of appeal/grounds versus Kshs.141,058.79 in the summary of the trial court's award.

minor

The burden-of-proof ground of appeal is not expressly resolved in the court's analysis, though it is subsumed in the finding on desertion versus dismissal.

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, "Colnet Limited v Kamau (Employment and Labour Relations Appeal E043 of 2024) [2025] KEELRC 2255 (KLR)", Case Analysis (2025). ELRC Appeal E003 of 2024 (Appeal from ELRC Cause No. E068 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2255/eng@2025-07-29

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