Kahasu v Odinga (Appeal E195 of 2024) [2025] KEELRC 2766 (KLR)
The bottom line
#Kenya's Employment Court dismissed an employer's appeal, confirming that claiming an employee absconded requires solid proof, and increased the worker's award to over Kshs 1.7 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent was unfairly terminated
Yes - the termination was both substantively and procedurally unfair. The Appellant failed to prove desertion on a balance of probabilities and violated section 41 of the Employment Act.
The burden lay on the employee under section 47(5) to show termination occurred, after which the burden shifted to the employer to justify the reasons. The Appellant alleged absconding but produced no attendance registers, call logs, show cause letter or disciplinary hearing. The over-speeding allegations were unsupported and no disciplinary measures followed. Reassigning the Respondent to the garage without assigning any duties met the constructive dismissal test in Coca Cola v Ligaga. Section 41's procedural requirements were wholly ignored.
Whether the trial court erred in awarding terminal dues and reliefs
No, save that the trial court wrongly capped the continuing-injury claims (underpayments, house allowance, unpaid leave) at three years; these were extended to the full 48 months.
The six months' compensation and one month's notice pay were justified and not disturbed, the appellate court deferring to the trial court's discretion absent demonstrated misdirection. Underpayments, housing allowance and unpaid leave are continuing injuries; since the suit was filed within 12 months of cessation of employment as required by section 90, the Respondent was entitled to the full years claimed, not the three-year cap. Service pay was upheld as the Appellant did not prove remittance of NSSF and NHIF dues.
Legal principles established
#- Desertion requires proof of an intention not to return, demonstrated by absence of communication, duration of absence, impact of absence and nature of duties.
- Dismissal on account of absconding must be preceded by evidence of reasonable attempts to contact the employee and issuance of a show cause letter.
- Section 41 of the Employment Act is mandatory; failure to follow it renders any outcome of the termination process unfair.
- Claims for underpayments, housing allowance and unpaid leave constitute continuing injuries falling within the ambit of section 90 of the Employment Act and are not capped at three years where the suit was filed within 12 months of cessation of employment.
- An appellate court will not interfere with the trial court's exercise of discretion unless satisfied that it misdirected itself and arrived at a wrong decision.
Court orders
#- 1.The Appeal is found unmerited and is dismissed with costs to the Respondent.
- 2.Amendments on the continuing injuries claims capped by the trial court at three years extended to the full term of 48 months as follows: Underpayments Kshs 510,096/=; House allowance Kshs 220,514.40/=; Unpaid leave Kshs 85,755/=; Total Kshs 816,365/-
- On appeal from
- Magistrates' Court
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over the subordinate court judgment (Memorandum of Appeal dated 11th July, 2024)
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.
- Simokaitis & another v Chula (Appeal E118 of 2025) [2025] KEELRC 2969 (KLR)[2025] KEELRC 2969 (KLR)30 Oct 2025followed
Cite this brief
#Cite this brief
Caselaw, "Kahasu v Odinga (Appeal E195 of 2024) [2025] KEELRC 2766 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 11th July, 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2766/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.