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ELRCDismissedAppeal E027 of 2025

Miles Motors Ltd v John Makori Kenyanya

Employment and Labour Relations Court
22 September 2026
3,112 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who claims a worker absconded must prove it with records and a hearing, or the law treats it as unfair dismissal.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi (Abuodha Nelson Jorum, J, Presiding Judge - Appeals Division) dismissed an appeal by Miles Motors Limited against the judgment of Hon. A. Nyoike, SPM in MCELRC No. E1304 of 2021, which had awarded the Respondent, a cleaner, notice pay of Ksh. 15,000, house allowance of Ksh. 207,900, five months' compensation for unfair termination of Ksh. 75,000, plus interest and costs. The appeal, disposed of by written submissions, was condensed into two issues: whether the trial court erred in finding unfair termination and awarding terminal dues, and whether it erred in awarding house allowance. The court held that the employer, as custodian of records under section 74 of the Employment Act, produced no resignation letter, no evidence of abscondment, no efforts to trace the employee, and no disciplinary process under section 41; desertion requires an intention not to return. The employer was therefore deemed to have terminated the services, and the termination was both substantively and procedurally unfair. The five months' compensation and one month's notice pay were reasonable given over seven years of aggregate service. On house allowance, the claim was a continuing injury filed within twelve months under section 90, and the employer produced no evidence of consolidated salary, housing or payment of rent; 15% of basic salary was reasonable. The appeal was dismissed with costs to the Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court erred by finding unfair termination and awarding the resultant terminal dues
  2. 2.Whether the trial court erred by awarding the Respondent house allowance of Ksh. 207,900/=

Key legal issues

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01

Whether the Respondent was unfairly terminated

Holding

The Appellant failed to prove voluntary resignation or desertion; it was deemed to have terminated the services, and the termination was both substantively and procedurally unfair

Reasoning

The employer, as custodian of records under section 74, produced no resignation letter, no evidence of abscondment, no efforts to trace the employee, no disciplinary process under section 41, and no notice to the Labour Officer under section 18(5)(b). Desertion requires intention not to return, demonstrated by absence of communication, duration and impact. Substantive fairness under sections 43 and 45 and procedural fairness under section 41 were both absent.

p. 5
02

Whether the award of 5 months' compensation and one month's notice pay was erroneous

Holding

The awards were reasonable and not erroneous given over 7 years of aggregate service and termination without notice

Reasoning

Compensation under section 49(1)(c) is discretionary; interference requires an error leading to an erroneous decision. With over 7 years of service and termination without notice contrary to section 36, five months' compensation and one month's notice pay were justified.

p. 6
03

Whether house allowance of Ksh. 207,900 was payable

Holding

The award was upheld; the employer produced no evidence of consolidated salary, housing or provision of rent, and 15% of basic salary was reasonable

Reasoning

Under section 31 of the Employment Act the employer must prove consolidation or provision of accommodation. No payslip was produced and the employment letter referred to monthly salary only. The claim was a continuing injury filed within 12 months under section 90, and the 7.7-year period used was the period actually worked.

p. 6

Legal principles established

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  • Where an employer alleges an employee deserted or voluntarily left employment, the employer bears the burden of proving resignation, abscondment or efforts to trace the employee; absent such proof the employer is deemed to have terminated the services
  • Dismissal on account of absconding must be preceded by reasonable attempts to contact the employee and a show cause letter, and where the employee cannot be traced, notice to the Labour Officer with deposit of terminal dues
  • Section 41 of the Employment Act is mandatory; failure to accord a hearing renders the outcome of the process unfair
  • House allowance claims are continuing injuries which must be filed within 12 months of cessation of employment under section 90 of the Employment Act
  • An appellate court will not interfere with the trial court's exercise of discretion on compensation unless the discretion was exercised on an error of principle occasioning injustice

Court orders

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  1. 1.The Appeal is dismissed with costs to the Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Milimani Chief Magistrates Court
MCELRC No. E1304 of 2021
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the magistrates' court (Employment and Labour Relations Court Act)

Relief refused

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Setting aside of the trial court judgment and decree and allowing of the appeal

The Appellant failed to justify the alleged voluntary leaving or absconding; termination was substantively and procedurally unfair and the house allowance award was supported by evidence

p. 6

Costs

Appeal dismissed with costs to the Respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

in the absence of evidence of resignation or absconding of duty, or effort by the Appellant to trace the Respondent on allegations of voluntary desertion of duty, the Appellant was deemed to have terminated the services of the Respondent.
p. 3Burden of proof on alleged desertion
In conclusion this court agrees with the trial court decision and finds that the Respondent’s termination was both substantively and procedurally illegal, unfair and justified.
p. 5Substantive and procedural fairness
Section 41 of the Employment Act is couched in mandatory terms. Where an employer fails to follow these mandatory provisions, whatever outcome of the process is bound to be unfair
p. 5Mandatory hearing requirements
In the upshot the Appeal is devoid of merit and is hereby dismissed with costs to the Respondent.
p. 6Final orders
It is so ordered.
p. 6Disposition

Issues in the judgment

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minor

Conflicting dates of the trial court judgment

minor

Same judgment dated differently in the memorandum of appeal

minor

Party confusion in drafting

minor

Section 41 violation attributed to the wrong party

minor

Inconsistent service-break accounts

minor

Inconsistent service-break duration

minor

Inconsistent house allowance figures

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Miles Motors Ltd v John Makori Kenyanya", Case Analysis (2026). Appeal E027 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2505/eng@2026-09-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.