Swan Carriers Limited v Fredrick Ochieng Onyango
The bottom line
#A Kenyan court cut a sacked turnboy's award but confirmed employers must formally terminate employment, even when a worker allegedly absconds.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction after striking out of the tort claim
Combining a tort claim with an employment claim is a procedural technicality; the trial court properly determined the employment claim on its merits
The court invoked Section 20 of the Employment and Labour Relations Court Act directing courts not to determine cases on procedural technicalities. The omnibus pleading combining malicious prosecution and employment claims was treated as a technicality that could not defeat substantive justice, so the trial magistrate's assumption of jurisdiction over the employment claim was upheld.
Limitation under Section 89 of the Employment Act
The claim was not time-barred because the employer failed to terminate the employment after asserting abscondment, leaving the cause of action open-ended
Although the arrest occurred in July 2018 and the suit was filed in June 2023, the court held that the claim for salary arose from the date of arrest and that the employer's failure to terminate the employment under Section 41 left the cause of action open-ended. It is the employer's duty to bring the employment relationship to an end, so the limitation period did not bar the claim.
Burden of proof on salary arrears
The respondent failed to prove on a balance of probabilities that he returned to work or rendered services after arrest; the salary award was set aside
The appellant's documentary evidence (letter to the Labour Officer reporting abscondment from 30th July 2018) was unrebuted. The respondent gave no name of the guard who allegedly turned him away, no date of return, and no corroborating evidence. Under Section 17(1) of the Employment Act wages are payable only for work done, so the award of Kshs. 169,400/- as salary arrears could not stand.
Unpleaded constructive dismissal and remedies
The trial court did not err in finding constructive dismissal and awarding notice pay and 3 months' compensation despite no specific prayer, as the facts disclosed unfair termination
Employment, lack of termination and stoppage of salary were undisputed; the employer knew of the arrest but never afforded the respondent an opportunity to explain his absence under Section 41. The finding of constructive dismissal flowed logically from the facts and was not a new cause of action. Upon finding unfair termination, the court was bound to consider remedies under Sections 49 and 50 of the Employment Act.
Computation of awards on gross salary
Notice pay and compensation recalculated on gross salary of Kshs. 12,075/- as required by Section 49
The respondent pleaded net salary, but Section 49 of the Employment Act bases the equivalent of months' wages on gross monthly wage or salary at the time of dismissal. The payslip (PEXB 4) showed gross salary of Kshs. 12,075/-. The court therefore interfered with the awards of notice pay and compensation to reflect gross salary, yielding Kshs. 12,075/- and Kshs. 36,225/- respectively.
Legal principles established
#- Wages are payable only in respect of work done; an employee who renders no services earns no wages
- It is the employer's duty to bring an employment relationship to an end; failure to terminate upon asserting abscondment leaves the cause of action open-ended and defeats a limitation defence
- Even where an employee absconds, the employer must terminate fairly and lawfully in compliance with Section 41 of the Employment Act
- A finding of constructive dismissal may flow logically from unpleaded facts and is not a new cause of action where employment, lack of termination and salary stoppage are undisputed
- Once a court finds termination wrongful or unfair, the only question is the appropriate remedy under Section 49 of the Employment Act
- Compensation and notice pay under Section 49 are computed on gross salary, not net salary
Court orders
#- 1.Appeal allowed partially; the award of unpaid salary is set aside
- 2.Judgment and Decree of the Hon. M. A. Nanzushi (SPM) delivered on 10th December 2025 in Mavoko MCELRC Cause No. E512 of 2023 set aside and substituted with judgment for the claimant against the 1st defendant: notice pay of 1 month's salary Kshs. 12,075/-; 3 months compensation for unlawful termination Kshs. 36,225/-; costs and interest
- 3.Each party to bear own costs of the appeal
- 4.Stay of 30 days granted on application of the appellant
- On appeal from
- Chief Magistrates Court (Mavoko MCELRC)
- Mavoko MCELRC Cause No. E512 of 2023
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court under the Employment and Labour Relations Court Act (guidance provision at Section 20 invoked); appeal from Mavoko MCELRC Cause No. E512 of 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Swan Carriers Limited v Fredrick Ochieng Onyango", Case Analysis (2026). Appeal Number E006 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2479/eng@2026-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.