Namanga v Cittadelle Security Ltd

to the Claimant despite the fact that the contents of the letter dated 27th July 2017 bearing mismatching facts to the letter dated 16th June 2017. From the two letters the Appellant's letter made a humble request and not a demand or ultimatum. 2. 3. 4. In failing to make a fair assessment, the learned trial magistrate failed to award the Appellant notice pay and compensation as it guaranteed under section 49(1)(a) and (c) of the Employment Act. 5. The learned trial Magistrate erred in law and in failing to award the Claimant the relief of house allowance, yet the same is provided for under section 31 of the Employment Act. 6. The learned trial Magistrate erred in law and in fact in failing to note that the Appellant (the then Claimant) had demonstrated through his evidence that he worked overtime and this piece of evidence was not controverted in any substantial way by the Respondent. 7. Further to paragraph 6 above, the Appellant (the then Claimant) had ably demonstrated that he also worked during o days, public holidays and for leave and the Respondent did not substantially controvert the said contention. 8. In failure demonstrated above, the trial court erred in failing to award the relief for overtime, o duties, public holidays and leave. 9. The trial court also erred in failing to award costs of the suit. The Appellant prays that: a. The court awards the relief of house allowance, overtime, o duties, public holidays and leave. b. The court to award costs in the trial court. c. Costs of the appeal be borne by the Respondents d. Interest to apply from the date of judgment of the trial court. The appeal was disposed of by way of written submissions. Appellant’s submissions 4. The Appellant submitted that the trial court erred in nding that he deserted duty and that the Respondent followed due process in summarily dismissing him. The Appellant also submitted that the dismissal was unlawful as the Respondent failed to comply with the requirements of section 41 of the Employment Act, 2007, which mandates a fair disciplinary process. The Appellant relies on several authorities: in Judith Atieno Owuor v Sameer Agriculture and Livestock Limited [2020] KEELRC 609 (KLR), the court held that even where desertion is alleged, an employee is entitled to a fair disciplinary process under section 41 of the Employment Act, 2007 and cited the case of Felistas Acheha Ikatwa v Charles Peter Otieno [2018] KEELRC 2491 (KLR), where it was emphasized that employers must demonstrate eorts to reach out to employees alleged to have absconded duty. In Walter Ogal Anuro V Teachers Service Commission [2013] KEELRC 386 (KLR), the Court stated that termination must meet both substantive justication and procedural fairness; and in Ronald Nyambu Daudi v Tornado Carriers Limited [2019] KEELRC 2150 (KLR), the Court reiterated that desertion must be proved by showing eorts to contact the employee, citing the case of Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited [2016] KEELRC 1382 (KLR). 5. The Appellant further contended that, having been unfairly terminated, he is entitled to Notice Pay under Section 36 of the Employment Act and compensation under Section 49(1)(a) and (c) https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2158/eng@2026-07-17 2

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of the Employment Act. He also seeks reliefs for overtime, public holidays, o duties, and leave, supported by contractual terms requiring him to work 12-hour shifts, remain on call 24 hours, and work seven days a week without overtime pay. He argued that the Respondent did not rebut his testimony or provide leave records, and therefore the computations he presented amounting to Kshs.511,565.94/= for overtime, Kshs.340,117.54/= for o duties, Kshs. 72,305.47/= for public holidays, and Kshs.32,198.53/= for leave should be adopted. 6. Finally, the Appellant submitted that the trial court erred in failing to award costs despite his substantial success and prays for costs of both the suit and the appeal, together with interest from the date of judgment. 7. At the writing of this judgment, the Respondent did not le their respective written submissions. Analysis and determination 8. Being the rst appeal, the court must re-evaluate the evidence and come to a conclusion since it was not present when the evidence was adduced or see the witnesses as set out in Abok James Odera T/ A A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2001] KECA 21 (KLR) and Selle Associates V Associated Motor Boat Company Ltd (1968) E.A. 123. 9. Having considered the memorandum of appeal and the rival submissions on record, the issue for determination is whether the trial Magistrate erred in dismissing the Appellant’s case without any awards. 10. In Isindu v Lavington Security Guards Ltd [2017] KECA 225 (KLR) the Court of Appeal held as follows: “ There can be no doubt that the Act, which was enacted in 2007, places heavy legal obligations on employers in matters of summary dismissal for breach of employment contract and unfair termination involving breach of statutory law. The employer must prove the reasons for termination/dismissal (section 43); prove the reasons are valid and fair (section 45); prove that the grounds are justied (section 47 (5), amongst other provisions. A mandatory and elaborate process is then set up under section 41 requiring notication and hearing before termination. The Act also provides for most of the procedures to be followed, thus obviating reliance on the Evidence Act and the Civil Procedure Act/Rules. Finally, the remedies for breach set out under section 49 are also fairly onerous and generous to the employee. But all that accords with the main object of the Act as appears in the preamble: “..to declare and dene the fundamental rights of employees, to provide basic conditions of employment of employees.." Those provisions are a mirror image of their constitutional underpinning in Article 41 which governs rights and fairness in labour relations. Section 47 (5) of the Act provides for the procedure to be followed in matters of complaints of unfair termination as follows: For any complaint of unfair termination of employment or wrongful dismissal the burden of proving that an unfair termination of employment or wrongful dismissal has occurred shall rest on the employee, while the burden of justifying the grounds of the termination of employment or wrongful dismissal shall rest on the employer.” [Emphasis added]. So that, the appellant in this case had the burden to prove, not only that his services were terminated, but also that the termination was unfair or wrongful. Only when this https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2158/eng@2026-07-17 3

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foundation has been laid will the employer be called upon under section 43 (1): "to prove the reason or reasons for the termination, and where the employer fails to do so, the termination shall be deemed to have been unfair within the meaning of Section 45 of the aforesaid Employment Act. 11. In Judith Atieno Owuor v Sameer Agriculture and Livestock Limited (Supra) the court held as follows: “ From the evidence adduced in this matter, the Claimant maintains that the Respondent had suspended her from duty to pave way for investigations, a fact that is not disputed by the Respondent. It therefore cannot now purport to claim that the Claimant is guilty of desertion. Further, even if she had absconded, she is by law entitled to a fair disciplinary process as set out in section 41 of the Employment Act, 2007. No evidence was availed to the court to support there having been a disciplinary process or notice issued prior to the termination. It is the duty of the Respondent to show this Court it did accord the Claimant a fair hearing prior to her termination. In the case of Felistas Acheha Ikatwa v Charles Peter Otieno (2018) eKLR, it was held: “The law is therefore well settled that an employer claiming that an employee has deserted duty must demonstrate eorts made towards getting the employee to resume duty. At the very least, the employer is expected to issue a notice to the deserting employee that termination of employment on the ground of desertion is being considered.” In the case of Walter Ogal Anuro v Teachers Service Commission (2013) eKLR, the Court held that: “…. For a termination of employment to pass the fairness test, there must be both substantive justication and procedural fairness. Substantive justication has to do with establishment of a valid reason for the termination while procedural fairness addresses the procedure adopted by the employer to eect the termination.” In the present case, I nd no evidence of either desertion of duty or fair termination by the respondent. I thus return a nding that the termination of the claimant’s employment was unfair both substantively and procedurally.” 12. In Ronald Nyambu Daudi v Tornado Carriers Limited(supra) the court held as follows: “ Desertion of duty is a grave administrative oence, which if proved, would render an employee liable to summary dismissal. It is however not enough for an employer to simply state that an employee has deserted duty. The law is that an employer alleging desertion against an employee must show eorts made towards reaching out to the employee and putting them on notice that termination of employment on this ground is under consideration (see Evans Ochieng Oluoch v Njimia Pharmaceuticals Limited [2016] eKLR). In his testimony before the Court, the Respondent’s Workshop Supervisor, John Omenda Oloo, accused the Claimant of careless performance of duty and reporting for duty while intoxicated. When put under cross examination, Oloo stated that the Claimant was terminated on account of poor performance. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2158/eng@2026-07-17 4

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With these conicting accounts by the Respondent, the Court was unable to identify a specic reason for the termination of the Claimant’s employment. At any rate, none of the grounds were established at the shop oor and the ensuing termination was therefore substantively and procedurally unfair and the Claimant is entitled to compensation.” 13. In this instant appeal, the Appellant was employed by the Respondent as a watchman under a one‑year contract earning Kshs.9,000/= per month, later increased to Kshs.16,000/= and subsequently to Kshs.18,000/= before his summary dismissal on the ground of refusing a transfer. The Respondent contends that the Appellant had been placed at the Linksoft project, which terminated its contract in May 2017, after which the Appellant proceeded on leave and utilized his pending leave days while awaiting redeployment. In June 2017, the Respondent claims to have secured an opening in Nairobi and attempted to contact the Appellant without success. The Respondent further asserts that in early 2018, when the Appellant resurfaced, he was oered a supervisory position in Nairobi but declined, stating he had secured alternative employment and later alleging that he was engaged in school. 14. The trial magistrate found that the Appellant, by absenting himself from work after writing the letter without obtaining approval from the Respondent and by refusing to accept the transfer, willfully neglected his duty. From the contents of the letter, the court concluded that the Appellant intended to resign and therefore acted dishonestly in later claiming entitlement to a notice to show cause or a disciplinary hearing. In light of these circumstances, the magistrate held that the Respondent was justied in summarily dismissing the Appellant. 15. It is this court’s nding that indeed the Appellant left his employment after he was given an opportunity to move to Nairobi as the contract with Linksoft project had terminated. He was transferred to Nairobi with eect from 19th June 2017. He wrote a letter dated 16th June 2017 whereby he stated he could not transfer to Nairobi. He said he was committed to class and asked to rejoin the company at the end of the year. 16. The company could not have been expected to wait for him for six months and then on his terms decide when to go back to work. It does not work like that. Any employee cannot dictate his terms of when and where to work. 17. The Respondent was patient with him and nally terminated him by their letter of 27th July 2017. They explained that the eorts of the supervisor to reach him had been futile. 18. This court wholly agrees with the trial court that the Appellant took over six months leave of absence to pursue studies without the approval of the employer. I agree the Respondent was justied in terminating their relationship with the Appellant as an employment relationship cannot work like that whereby an employee absents himself from work for along period of time without the Leave of the employer and expect to nd his employment is still available. The court therefore agrees with the trial court that the Appellant had only himself to blame for the termination of his employment. The court holds his dismissal was not unlawful and the trial court decision is therefore upheld. 19. The court will not interfere with the award of underpayment of Kshs.141,943/47 awarded by the trial court. 20. The Appellant to be given his certicate of service within 30 days from today’s date. 21. Each Party will bear their costs of the trial court and of this appeal. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2158/eng@2026-07-17 5

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Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 17TH DAY OF JULY, 2026. ANNA NGIBUINI MWAURE JUDGE Order In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and aordable resolution of civil disputes. A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2158/eng@2026-07-17 6

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