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MagistratePartially AllowedMCELRC Cause No. E717 of 2024· [2026] KEMC 463 (KLR)

Okelo v Keen Kleeners Ltd (Cause E717 of 2024) [2026] KEMC 463 (KLR)

Chief Magistrates Court at Mombasa
30 July 2026
2,990 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 Mombasa court ruled that an employer can't treat an employee as having absconded without first trying to contact them and hear their side.

What this practically means

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Executive summary

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The Claimant, employed as a gardener by the Respondent, claimed that he was verbally dismissed on 31st December 2022 and sought compensation for unfair termination, notice pay, house allowance, leave pay, service pay, general damages and a certificate of service. The Respondent denied dismissal, asserting that the Claimant reported for work on 1st January 2023, thereafter absconded duty, and breached the contract by leaving without the contractual notice; it counterclaimed one month's salary in lieu of notice. The matter was determined on pleadings, documents and written submissions under Rule 59 of the ELRC (Procedure) Rules. The Court found an employment relationship existed, but the attendance worksheets contradicted the Claimant's assertion of dismissal on 31st December 2022. However, the Respondent produced no evidence of efforts to trace the Claimant or of any disciplinary process before treating his absence as voluntary resignation; its letter to the Labour Officer merely communicated a decision already made. The Court held that the Claimant proved procedural but not substantive unfairness, both parties having contributed to the separation. It awarded three months' gross salary (Kshs. 51,366) as compensation under section 49 and Kshs. 11,985 as leave pay, drawing an adverse inference from the absence of leave records. Notice pay, house allowance, service pay (the Claimant being an NSSF contributor) and general damages were declined. The counterclaim failed, and in view of the mixed success each party was ordered to bear its own costs. A certificate of service was to issue within thirty days, with interest on the awarded sums.

Key legal issues

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01

Whether the Claimant was dismissed on 31st December 2022 or absconded duty from January 2023

Holding

The Claimant did not satisfactorily prove verbal dismissal on 31st December 2022; attendance records showed he worked on 1st January 2023, but the Respondent equally failed to prove it followed a fair procedure before ending the employment.

Reasoning

Attendance worksheets indicated the Claimant reported for duty on 1st January 2023, contradicting his claim of dismissal the previous day. The Respondent produced no evidence of efforts to contact the Claimant, no notice to show cause and no disciplinary process. Its letter to the Labour Officer merely communicated a decision already reached. Both parties contributed to the manner in which the relationship ended.

p. 9
02

Whether the termination was procedurally unfair

Holding

Yes - the Claimant proved procedural unfairness but not substantive unfairness as alleged.

Reasoning

Section 41 obliges an employer to hear an employee's explanation before termination for misconduct, and desertion falls within that category. The Respondent produced no letters requiring resumption of duty, notices to show cause, telephone records, text messages or other correspondence, so compliance with statutory procedural safeguards was not demonstrated.

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Whether the Respondent proved its Counterclaim for notice pay

Holding

No - the counterclaim was not proved on a balance of probabilities.

Reasoning

The Respondent did not show it formally accepted the alleged resignation or communicated any demand for notice pay before instituting proceedings. Having failed to follow the statutory process before ending the employment relationship, it could not recover damages arising from the same separation.

p. 14

Legal principles established

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  • An employer who alleges that an employee has absconded duty must still make reasonable efforts to reach the employee and accord him an opportunity to explain his absence before treating the employment as terminated.
  • Procedural fairness under section 41 of the Employment Act applies even where the alleged misconduct is abscondment.
  • The Employment Act is a complete code on remedies for unfair termination; general damages are not separately awardable.

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was procedurally unfair.
  2. 2.Compensation equivalent to three (3) months' gross salary awarded in the sum of Kshs. 51,366.
  3. 3.Leave pay in the sum of Kshs. 11,985 awarded.
  4. 4.The claim for one month's salary in lieu of notice is dismissed.
  5. 5.The claim for house allowance is dismissed.
  6. 6.The claim for service pay is dismissed.
  7. 7.The claim for general damages is dismissed.
  8. 8.The Respondent shall issue the Claimant with a Certificate of Service within thirty (30) days of the Judgment.
  9. 9.The Respondent's counterclaim is dismissed.
  10. 10.The sums awarded shall attract interest at court rates from the date of Judgment until payment in full.
  11. 11.Each party shall bear its own costs.

Authorities

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Legislation

  • Employment Actsections 35, 35(6), 35(6)(d), 41, 43, 45, 47(5), 49, 51
  • Employment and Labour Relations Court (Procedure) RulesRule 59
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, Rule 59 (matter determined on pleadings, documents and written submissions)

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, "Okelo v Keen Kleeners Ltd (Cause E717 of 2024) [2026] KEMC 463 (KLR)", Case Analysis (2026). MCELRC Cause No. E717 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/463/eng@2026-07-30

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