Swan Carriers Limited v Justus Macharia
The bottom line
#A Kenyan court cut a sacked driver's back-pay award but confirmed employers must formally terminate employment, even when staff allegedly abscond.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction after striking out of the tortious claim
The grounds of appeal on the omnibus plaint were procedural technicalities; the trial court properly determined the employment claim on its merits
The court accepted the malicious prosecution and employment claims had been intertwined and the tort claim struck out. Relying on section 20 of the Employment and Labour Relations Court Act, it declined to fault the trial court for proceeding with the surviving employment claim, holding the complaint amounted only to procedural technicality.
Limitation under Section 89 of the Employment Act
The claim was not time-barred because the employer never terminated the employment, leaving the cause of action open-ended
The arrest in July 2018 was undisputed. The respondent asserted continued employment without a termination letter while salary was stopped; the appellant asserted abscondment but never terminated the employment. The court held it is the employer's duty to end the relationship, so the claim for salary accrued from the arrest and remained a continuing, open-ended cause of action.
Burden of proof on return to work and entitlement to wages
The respondent failed to prove on a balance of probabilities that he returned to work after arrest; the documentary evidence of abscondment was unrebutted
The respondent's oral evidence of being denied access at the gate was not pleaded, lacked the date, the guard's name, and corroboration. The appellant's letter to the labour officer reporting abscondment was given no weight by the trial court without basis. Documentary evidence cannot be dislodged by uncorroborated, unpleaded oral evidence.
Award of salary for periods not worked
The award of Kshs. 169,400 salary arrears was erroneous and set aside, following Akama v Kisii University
Under section 17(1) of the Employment Act wages are payable for work done. The respondent neither pleaded nor proved rendering services or availability to work during the 14-month period. The court upheld Akama and set aside the salary arrears award as unsupported by evidence and contract.
Constructive dismissal and unpleaded remedies
The trial court did not err in finding constructive dismissal and awarding notice pay and 3 months' compensation despite no specific prayer
Employment, lack of termination, and stoppage of salary were undisputed, supporting constructive dismissal per Coca Cola v Ligaga. Once unfair termination is found, the court's automatic duty is to consider section 49 remedies per section 50, guided by the Supreme Court's explanation in Ken Freight v Nguti. Notice was due under section 35 and 3 months' compensation was reasonable given service from 2004 to 2018.
Legal principles established
#- Wages are payable only for work done; an employee who neither worked nor proved availability to work is not entitled to salary arrears
- Even where an employee absconds, the employer bears the duty to terminate the employment fairly and lawfully in compliance with section 41 of the Employment Act
- Where an employer fails to terminate employment after asserting abscondment, the claim for salary cannot be said to be time-barred as the cause of action remains open-ended
- A court may find constructive dismissal though not specifically pleaded where the finding flows logically from facts common before the court
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 10th December 2025 in Mavoko MCELRC Cause No. E510 of 2023 set aside and substituted with judgment for the claimant against the 1st defendant: notice pay of 1 month's salary Kshs. 12,100; 3 months compensation for unlawful termination Kshs. 36,300; costs and interest
- 4.No order as to costs on the appeal; each party to bear their own costs
- 5.30-day stay granted
- On appeal from
- Chief Magistrates Court (Mavoko)
- Mavoko MCELRC Cause No. E510 of 2023
- Jurisdiction invoked
- First appellate jurisdiction of the Employment & Labour Relations Court over the subordinate court's judgment and decree
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Swan Carriers Limited v Justus Macharia", Case Analysis (2026). Appeal Number E003 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2478/eng@2026-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.