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ELRCPartially AllowedCause No. 1049 of 2016

Fredrick Ouma Otieno v Falcon Signs Limited

Employment and Labour Relations Court of Kenya
29 September 2026
1,899 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employer's 'desertion' claim failed without evidence, awarding a laid-off worker Kshs. 62,656 for unfair termination.

What this practically means

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Executive summary

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The Claimant, a carpenter employed by the Respondent from September 2011, sued for unfair termination, alleging that on 30th September 2013 the Respondent's Finance Director, Ms. Heena Magdani, told him his services were no longer required owing to staff reduction. He sought declarations, terminal dues and compensatory damages of Kshs. 219,296.00, interest and costs. The Respondent denied dismissing him, asserting he deserted employment without notice, and counterclaimed Kshs. 29,405.00 being one month's salary in lieu of notice. The court framed four issues: whether the Claimant voluntarily left or was laid off; whether any lay off was unfair; entitlement to reliefs; and the counter claim. On the evidence, RW1 produced no electronic proof of attempts to contact the Claimant and gave no date for the alleged disappearance, while the Claimant's September 2013 payslip showing service pay corroborated his account. The court found the Claimant was laid off on 30th September 2013 and dismissed the counter claim. The burden then shifted to the Respondent to justify the termination. Since the reason cited was redundancy, the mandatory procedure in section 40(1) of the Employment Act applied; the Respondent complied with none of it and did not rebut evidence that it hired new staff afterwards. The termination was held unfair and unlawful under section 45. The court awarded notice pay of Kshs. 14,240.00, compensation of two months' gross salary (Kshs. 28,480.00) given the short service and absence of misconduct, and leave pay of Kshs. 19,936.00, totalling Kshs. 62,656.00, with costs, interest at court rates, and subject to statutory deductions.

Questions the Court framed

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

  1. 1.Whether the Claimant voluntarily left employment or he was laid off.
  2. 2.If the answer is lay off, whether the same was unfair and unlawful.
  3. 3.Whether the Claimant deserves the reliefs sought.
  4. 4.Whether the counter claim should be allowed.

Key legal issues

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01

Whether the Claimant deserted employment or was laid off

Holding

The Claimant was laid off on 30th September 2013; the desertion claim failed.

Reasoning

RW1 alleged the Claimant disappeared and blocked phone calls but produced no electronic evidence of the calls or texts, and did not state the date of the alleged disappearance. The Claimant produced a September 2013 payslip showing salary plus service pay, corroborating termination in September 2013. The court found the Claimant's evidence more believable and dismissed the counter claim.

p. 7
02

Whether the termination was unfair and unlawful

Holding

The termination was unfair and unlawful within the meaning of section 45 of the Employment Act.

Reasoning

The reason cited was redundancy, requiring compliance with the mandatory section 40(1) procedure. The Respondent followed none of it, did not rebut evidence that it hired new staff after terminating the Claimant, and made no effort to discharge the burden of proof shifted to it, merely persisting in the unsubstantiated desertion allegation.

p. 11
03

What reliefs the Claimant deserves

Holding

One month's salary in lieu of notice (Kshs. 14,240.00), two months' gross salary as compensation (Kshs. 28,480.00), and leave pay of Kshs. 19,936.00 for two years.

Reasoning

Under section 49(1) of the Employment Act the Claimant was entitled to notice pay and compensation. Compensation was limited to two months' gross salary given his short service of two years and the absence of misconduct on his part. Leave pay was awarded for the two years served despite the absence of a written leave application, the Claimant having applied orally.

p. 12

Legal principles established

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  • Payment of service pay in the final payslip evidences that the employee exited employment at that time, supporting the employee's account of termination over desertion.
  • Once lay off is established, the burden shifts to the employer to prove a valid reason and fair procedure for termination under section 45(2) of the Employment Act.
  • An employer terminating on account of redundancy must strictly comply with the mandatory procedure in section 40(1) of the Employment Act, including one month's notice and severance pay of not less than fifteen days' pay per completed year of service.

Court orders

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  1. 1.Declaration that the Claimant's employment was unfairly and unlawfully terminated by the Respondent.
  2. 2.Award of Kshs. 14,240.00 being one month's salary in lieu of notice.
  3. 3.Award of Kshs. 28,480.00 being compensation for unfair termination (two months' gross salary).
  4. 4.Award of Kshs. 19,936.00 being leave pay for the two years served.
  5. 5.Total award of Kshs. 62,656.00 with costs and interests at court rates from the date of judgment.
  6. 6.The award is subject to statutory deductions.
  7. 7.Dismissal of the Respondent's counter claim of Kshs. 29,405.00.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (not expressly cited in the judgment)

Relief refused

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Claimed terminal dues and compensatory damages totalling Kshs. 219,296.00

The court awarded only Kshs. 62,656.00, far less than the pleaded figure, based on salary of Kshs. 14,240.00 and two years' service.

p. 12

Costs

Costs and interests at court rates from the date hereof, awarded to the Claimant.

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.

Consequently, I dismiss the case of the allegedly desertion and reiterate that the Claimant was laid off on 30th September 2013.
p. 8Desertion versus lay off
RW1 did not produce any electronic evidence to prove that she made any effort to contact the Claimant after the alleged disappearance.
p. 7Burden of proof on employer alleging desertion
I find and hold that the reason for the redundancy was not valid and the procedure followed was not fair and termination was rendered unfair and unlawful within the meaning of section 45 of the Act.
p. 11Unfair termination
Consequently, I enter judgement for the Claimant against the Respondent as follows:
p. 13Final orders
Costs and interests at court rates from the date hereof.
p. 13Costs and interest

Issues in the judgment

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minor

Document header says 'RULING' but the text is a final judgment.

minor

Pleadings dated 2014 in a 2016 cause; likely typographical errors.

minor

Judgment date 2026-09-29 as printed; anomalous for a 2016 cause.

minor

Leave pay formula garbled in the judgment.

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, "Fredrick Ouma Otieno v Falcon Signs Limited", Case Analysis (2026). Cause No. 1049 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2617/eng@2026-09-29

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