Swan Carriers Limited v Jared Ouma Onyango
The bottom line
#A Kenyan court cut a driver's award from Kshs 639,200 to Kshs 75,200, ruling employers must formally terminate even when staff abscond, but wages require proof of work.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction after striking out of the malicious prosecution claim
The combination of tort and employment claims was a procedural technicality; the trial court properly determined the employment claim on its merits
The court applied section 20 of the Employment and Labour Relations Court Act, which directs that cases should not be decided on procedural technicalities. The intertwining of a malicious prosecution claim with the wage claim did not oust jurisdiction over the employment claim, so the trial court could proceed to determine it on the merits.
Limitation under Section 89 of the Employment Act
Claim not time-barred because the employer never terminated the employment, leaving the cause of action open-ended
The arrest in July 2018 was undisputed, but the employer neither terminated the contract nor complied with section 41. The salary claim arose on the date of arrest, but since the employer was at fault for failing to terminate the employment, the cause of action remained open and the three-year limitation bar did not defeat the claim.
Burden of proof on return to work and entitlement to wages
Respondent failed to prove on a balance of probabilities that he returned to work after arrest; documentary evidence of abscondment was unrebutted
The respondent's oral evidence of being turned away at the gate was not pleaded, lacked the guard's name, the date, and corroboration. The appellant's letter to the Labour Officer reporting abscondment was documentary evidence whose weight could not be dislodged by uncorroborated oral evidence. The claim for wages for periods without work failed under section 17(1).
Constructive dismissal and unpleaded remedies
Trial court did not err in finding constructive dismissal though unpleaded, as the finding flowed logically from undisputed facts; notice pay and 3 months' compensation upheld
Employment, non-termination and salary stoppage were undisputed, supporting constructive dismissal per Coca Cola v Ligaga. Once unfair termination is found, the court must consider remedies under sections 49 and 50. Notice was due under section 35 and 3 months' compensation was reasonable given service from 2010 to the 2018 arrest.
Legal principles established
#- A first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions while making due allowance for not having seen or heard the witnesses
- It is the employer's duty to bring an employment relationship to an end; failure to terminate leaves the cause of action open-ended and defeats a limitation defence
- Wages are payable only in respect of work done; salary for periods when no services were rendered cannot be awarded
- Even where an employee absconds, the employer must terminate fairly and lawfully in compliance with section 41 of the Employment Act
- Once a court finds termination wrongful or unfair, the only question is the appropriate remedy under section 49 of the Employment Act
Court orders
#- 1.Appeal allowed partially
- 2.Award of unpaid salary set aside
- 3.Judgment and Decree of the Hon. M. A. Nanzushi (SPM) delivered on 11th December 2025 in Mavoko MCELRC Cause No. E511 of 2023 set aside and substituted with judgment for the claimant: notice pay of 1 month's salary Kshs. 18,800; 3 months' compensation for unlawful termination Kshs. 56,400; costs and interest
- 4.No order as to costs on appeal; each party to bear their own costs
- 5.30 days stay of execution granted
- On appeal from
- Chief Magistrates Court (Mavoko MCELRC)
- Mavoko MCELRC Cause No. E511 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the subordinate court's judgment and decree (Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Swan Carriers Limited v Jared Ouma Onyango", Case Analysis (2026). Appeal Number E005 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2473/eng@2026-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.