Onchwati v Karen Blixen Coffee Garden & Cottages Limited (Cause 185 of 2019) [2025] KEELRC 2530 (KLR)

The court found on the evidence that the claimant's boss (the MD) instructed him not to resume duty, so he did not abscond. No termination letter was produced and there was no evidence of delivery of the notice to show cause. RW1 admitted relying on the MD for her testimony, and the text messages were not controverted. On balance of probabilities the respondent failed to prove a valid reason or fair procedure.

The court applied section 49(4) factors: 14 years of service, clean disciplinary record, no employer evidence of employee contribution to termination, minimal social security, and the employer's contemptuous conduct in leaving the claimant in limbo and distress. These merited the statutory maximum of 12 months' gross salary.

The respondent admitted deducting monthly installments under a check-off arrangement. Bank statements showed salary paid to Equity Bank was less than net pay, the difference corresponding to loan deductions. Deductions continued even after the salary account changed, and the respondent retained the money instead of remitting it. General damages were declined for failure to mitigate.

Severance pay is only payable on redundancy termination, which was not this case. The court refused to recast the claim as service pay in submissions. Further, under section 35(5) and (6) of the Employment Act, service pay is unavailable to an employee registered under the NSSF, and the claimant produced no NSSF statement showing non-remittance.