Emungor v Winstar Security Guards Ltd (Cause E144 of 2021) [2024] KEMC 59 (KLR)
The bottom line
#A Kenyan court ruled that an employer cannot simply ignore an employee who stops showing up — desertion must be formally terminated or the dismissal is unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was unlawfully terminated and/or declared redundant
The Claimant was unlawfully terminated; the redundancy claim failed. Even if he deserted, the Respondent was bound to issue a termination letter or notice to show cause under sections 35 and 44 of the Employment Act.
The court found the claimant's evidence contradictory but held that desertion cannot of itself close a contract of employment. The employer was obliged to act on the desertion by issuing a summary dismissal letter, notice to show cause or warning. Silence on an absconding employee negates the right to dismiss, so the failure to issue any termination notice rendered the separation unfair.
Whether the Claimant was entitled to the reliefs sought
Compensation of 12 months' gross salary, notice pay, underpayments, overtime, off-duty dues, public holiday dues, two years' leave dues, May 2020 salary and certificate of service awarded; severance pay refused.
Unlawful termination entitled the claimant to statutory compensation. The employer failed to rebut overtime and holiday claims, producing no HR policy, contract clause or muster roll. Leave dues were limited to two years because the Respondent discharged its evidential burden with the approved leave letter REXH NO. 1, shifting the burden to the claimant.
Burden of proof regarding the disputed signature on the leave approval letter
Once the Respondent produced REXH NO. 1, the evidentiary burden shifted to the Claimant to prove the signature was not his.
Applying sections 107 and 108 of the Evidence Act and Halsbury's Laws, the court held that the legal burden on the Respondent was discharged by production of the leave approval letter bearing a signature of receipt; the standard being a preponderance of probabilities, the claimant bore the evidential burden of rebuttal and adduced none.
Legal principles established
#- An employer cannot rely on an employee's desertion without regularising it; the contract of service can only be closed by the employer issuing a termination notice or invoking sections 40, 41, 44 or 66-67 of the Employment Act
- The Employment Act reverses the burden of proof in termination disputes: the employee need only establish prima facie wrongful termination, whereupon the employer must justify the separation
- Failure to regularise a claim of desertion with a termination notice amounts to an unfair labour practice
- Severance pay is payable only in clear cases of declared redundancy and cannot coexist with a claim for unfair dismissal
Court orders
#- 1.1 month's salary in lieu of Notice Kshs. 16,143.70/=
- 2.Compensation for Unlawful Termination Kshs. 193,724.40/=
- 3.Underpayments Kshs.121,095.60/=
- 4.Normal overtime dues Kshs.352,852.90
- 5.Off Duty of Days dues Kshs. 78,411.40/=
- 6.Public Holiday dues Kshs. 70,270.05/=
- 7.Leave Allowance Kshs. 32,722.11/=
- 8.Unpaid Salary for May, 2020 Kshs. 16,143.70/= (Total: KSHS. 881,363.86/=)
- 9.The Respondent herein to issue the claimant with a certificate of service
- 10.The claimant be and is hereby awarded costs of the claim
- 11.30 days stay of execution granted
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Emungor v Winstar Security Guards Ltd (Cause E144 of 2021) [2024] KEMC 59 (KLR)", Case Analysis (2023). Cause No E144 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/59/eng@2024-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.