Corrugated Sheets Limited v Ngao (Appeal E031 of 2025) [2025] KEELRC 2322 (KLR)
The bottom line
#A Kenyan court ruled that even when a worker abandons their job, the employer must still follow due-process steps before dismissing them, or the dismissal is unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether desertion/abscondment justified summary dismissal
Absence without permission is gross misconduct under section 44(4)(a), but summary dismissal requires compliance with section 41(2) — notice and opportunity to be heard — and notification of the labour officer under section 18
The court accepted the respondent's admission of absence from 23 February to 10 March 2023 as gross misconduct justifying summary dismissal. However, the employer made no effort to notify the respondent to explain his absence despite knowing he had been arrested after a robbery. The notice to the labour officer was issued without demonstrating efforts to trace him. Summary dismissal was therefore permissible in principle but was not lawfully executed, so the finding of unfair termination stood.
Commencement date of employment and service pay
Employment commenced on 1 September 2020 per the written contract; service pay not payable as respondent was registered with NSSF
The respondent relied on a claim of employment from 2008, but the only record was the letter of appointment dated 12 September 2020 with effect from 1 September 2020. Under section 10(3), the written contract is the correct record. Older claims were time-barred under section 90. Since the respondent was registered with NSSF, section 35(6) disentitled him to service pay regardless of remittance failures, which are a separate labour offence.
Costs and interest in employment claims
Costs in ELRC are discretionary under section 12(4) of the ELRC Act and Rule 70; the trial court erred by awarding costs under the Civil Procedure Act regime
While section 26 of the Civil Procedure Act makes costs follow the event, employment claims are governed by section 12(4) of the ELRC Act and Rule 70 of the ELRC (Procedure) Rules, under which costs are discretionary and reasons must be given. The trial court applied the wrong regime without justification, so the costs and interest award could not stand.
Legal principles established
#- Absence from duty without permission constitutes gross misconduct justifying summary dismissal, but the employer must first comply with section 41(2) of the Employment Act and, where the employee cannot be traced, notify the labour officer under section 18
- Section 18(4) procedures are not mechanical; the employer must demonstrate efforts to trace the employee and issue a show-cause notice before reporting abandonment to the labour officer
- A written contract converting casual or oral employment is the correct record of employment for the court, and pre-contract claims are subject to the limitation in section 90 of the Employment Act
- Service pay under section 35(6) is not payable where the employee is registered under a pension scheme such as NSSF; non-remittance is a separate labour offence
Court orders
#- 1.Compensation of Ksh. 164,550 upheld
- 2.Notice pay of Ksh. 27,425 upheld
- 3.Pay for February 2023 of Ksh. 21,025 upheld
- 4.Each party to bear its own costs for the appeal and trial court proceedings
- 5.Award of service pay set aside
- 6.Award of interest set aside (impliedly, as the basis was found unjustified)
- On appeal from
- Magistrates' Court (ELRC), Mariakani
- CMELRC No. E033 of 2023
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kitema v Perfect Scan Limited (Appeal E039 of 2025) [2025] KEELRC 2682 (KLR)[2025] KEELRC 2682 (KLR)2 Oct 2025followed
Cite this brief
#Cite this brief
Caselaw, "Corrugated Sheets Limited v Ngao (Appeal E031 of 2025) [2025] KEELRC 2322 (KLR)", Case Analysis (2025). Not stated in the judgment (ELRC Appeal from Mariakani CMELRC No. E033 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2322/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.