Introduction
1 The Claimant filed this suit, asserting that at all material times he was an employee of the Respondent, whose employment had been terminated unfairly. He sought compensatory relief against the Respondent.
2 The Respondent challenged the Claimant’s claim with a Memorandum of Response dated 2nd March 2023, denying the Claimant’s cause of action against it and entitlement to the relief sought. It contended that the Claimant had been summarily dismissed, a summary dismissal that was both procedurally and substantively fair.
The Claimant’s Case
4. The Claimant stated that he first joined the Respondent’s workforce in May 2011 on permanent and pensionable terms as a silo operator at a monthly salary of KShs. 14,000.
5. In October 2012, he was promoted to Packing Plant Assistant and in February 2017, transferred to the Track yard. His salary had risen to 34,639.
6. He took a 14-day leave, and while on leave, the Respondent called him and asked him to take an additional 31 days.
7. On 22nd April 2017, he reported back, only to be asked to attend the office of the Operations Manager on or around 8th May 2017. The Operations Manager instructed him to reapply for his job. He objected to this direction, as he believed he was still employed. The Manager promised to call him after a week.
8. Indeed, a week later, the Operations Manager contacted him and instructed him to visit the Respondent’s Head Office. Upon arrival, he was given a letter outlining his terminal dues, totalling KShs. 31,625.
9. When he asked why, the Respondent’s Administrator informed him that she believed he had resigned, but she promised to escalate the issue to her boss.
10. Thereafter, the Respondent cut communication with him.
11. The Claimant contended that his April and May 2017 salaries were not paid. Further, during his employment with the Respondent, he was not allowed to take his annual leave at any point.
12. Sometimes between December 2016 and February 2017, he worked overtime but was not compensated.
13. The Respondent didn’t pay him a house allowance throughout his service period.
14. The Claimant asserted that, in light of the circumstances of his case, he is entitled to the following reliefs:
I. House allowance…………………………. KShs. 306,000.
II. Overtime pay [40 hours per month], ……..KShs. 6,158. 04.
III. Salary for April and May …………………...KShs. 69, 438.
IV. Unpaid leave days………………………….. KShs. 27, 125.
V. Notice Pay ………………………………….KShs. 34, 639.
VI. Damages for wrongful termination …..….KShs. 415.668.
15. During cross-examination by Counsel for the Respondent, the Claimant admitted that the payslips he presented in evidence do not reflect the same amount. He attributed this discrepancy to promotions that resulted in a new salary and compensation for overtime. The pay slip for March 2014 has an item for overtime.
16. He was advised to reapply for the job because he was being transferred to a new site. He didn’t understand the essence of this, as the Respondent still employed him.
The Respondent’s Case
17. The Respondent presented one witness, James Tsuma, its Operations Manager. The witness stated that the Respondent employed the Claimant on 1st October 2011 as a Silo Attendant. His salary was KShs 12,500.
18. According to his employment contract, his position was renewable annually, thus not permanent.
19. On 15th March 2017, the Claimant took leave and was expected to return to work on 22nd April 2017. However, on 22nd April 2017, the Claimant neither reported to work nor to the Head Office of the Respondent.
20. A week later, the Respondent’s Operations Manager contacted him and requested that he report to the Respondent’s Head Office. When the Claimant reported to the Head Office, he was offered his terminal dues, but he refused to accept them.
21. The Claimant deserted his employment and was never terminated by the Respondent.
22. Cross-examined by Counsel for the Claimant, the witness stated that the Claimant took leave from 15 March to 22 April 2017, a duration of 34 days. He filled out a leave form for the days.
23. The Claimant was not issued any show cause letter regarding the desertion. Even when he reported to the Head Office, he wasn’t.
24. His employment contract, dated 1 October 2011, was for one year. His salary was KShs 14,000, which was subsequently increased. The calculation of his terminal dues indicates that as of April 2017, his salary was Kshs. 31,625. He was paid his terminal dues. However, the Respondent has not provided any documents demonstrating that he was.
25. The Claimant was not issued a terminal letter. When he reported to the Respondent's Head Office, he refused to receive and sign for it.
Analysis and Determination.
26. I have carefully considered the pleadings, evidence and submissions by the parties herein, and the following issues emerge for determination;
I. Was the summary dismissal against the Claimant unfair?
II. Is the Claimant entitled to the reliefs sought?
27. The Respondent asserted that the Claimant was summarily dismissed from his employment due to desertion. Section 44[1] of the Employment Act 2007 stipulates that summary dismissal occurs when an employer terminates an employee's employment without notice or with less notice than the employee is entitled to by any statutory provision or contractual term. Under his employment contract, the Claimant was entitled to one month’s notice or salary in lieu. There is no doubt that the Respondent did not issue the Claimant any termination notice. Therefore, he was indeed summarily dismissed from his employment.
28. The key question to address is whether the summary dismissal was fair. To tackle this issue, the Court must investigate whether two statutory elements—procedural and substantive fairness—were present.
29. Section 41 of the Employment Act establishes a mandatory procedure that any employer contemplating the termination of an employee’s employment or summarily dismissing an employee must follow. The procedure detailed in this provision consists of three components: the employer must notify the employee of the intention and the grounds for it; the employer must provide the employee with an adequate opportunity to make a representation regarding the grounds in the presence of a colleague of their choice or a trade union representative, if they are a member of a trade union; and the employer must consider the representations made before reaching a final decision on the matter.
30. If any of the three components are absent in the process leading to the decision regarding termination or summary dismissal, such termination or summary dismissal shall be deemed unfair by operation of law, as stated in section 45 of the Employment Act.
31. Clearly, as the Respondent’s witness admitted, the Claimant was not issued a notice to show cause, which ordinarily sets out the accusations against an affected employee, nor was he invited to a disciplinary hearing with the opportunity to defend himself. Therefore, I will not hesitate to conclude that the dismissal was procedurally unfair.
32. Section 43 of the Employment Act places a duty on the employer to prove the reason for dismissal in disputes concerning the termination of an employee's employment. The Act further imposes a burden of proof under section 45[2] on the employer to demonstrate that the reason was fair and valid. Desertion of duty constitutes a valid ground for summary dismissal under section 44[4] of the Employment Act. The Respondent asserted and maintained that the Claimant was dismissed due to desertion. The Claimant, on the other hand, contended that he was merely instructed to go home and await a call regarding when to resume work, a call which never came. As such, he was dismissed without cause.
33. In a situation like this, one must believe in one of the two versions presented by the combatants and disbelieve the other. In such circumstances, the clarity of the parties’ pleadings, the alignment of their evidence with the pleadings, and the consistency of one’s testimony in chief and under cross-examination are paramount.
34. The Claimant’s pleadings did not strike me as clear on several material aspects; they were rather casually presented regarding very crucial elements of the matter. His evidence during cross-examination was a complete departure from his pleadings and evidence in chief as contained in his witness statement, leading me to perceive him as lacking in candour. Resultantly, I am persuaded by the Respondent’s version that the Claimant didn’t return to work after his leave. He deserted duty.
35. In conclusion, I find that the summary dismissal lacked procedural fairness, despite having substantive justification.
36. The Claimant asserted that he was not allowed to proceed with his annual leave at any time during his employment with the Respondent. In my view, this assertion was whitewashed during her evidence in cross-examination, where he made express admissions that he was permitted to enjoy his leave. He confirmed that when he took the leave of 14 days immediately before the separation, the Respondent instructed him to continue on leave until he had exhausted his outstanding 28 leave days. In the circumstances, I will have no reason to award him the relief under this head justly.
37. 7. In an overly general and ambiguous manner, the Claimant sought overtime compensation. Without specificity, he claimed that at times in December 2016 and February 2017, he worked overtime and was not compensated for it. Here, he invites the court to enter the realm of speculation. I decline the invitation because court decisions cannot be based on speculation. Under cross-examination, he admitted that some of his pay slips included the item 'overtime', and that the amounts on the pay slips were inconsistent, inter alia, due to the overtime paid aspect. I reject the relief.
38. I note from the employment contract that the Claimant presented that the agreed salary was a gross monthly salary, which in my view includes a house allowance. His request for a house allowance is therefore rejected.
39. Having determined that the summary dismissal was substantively justified, I am not convinced that a termination notice could be issued under the circumstances to warrant notice pay if one was not issued.
40. According to section 49[1] of the Employment Act, the court has the power to award compensatory relief to an employee who proves that their termination was unfair or that their summary dismissal was unjust. It is pertinent to understand that this power is exercised at the court's discretion, taking into account the specific details of each case.
41. The Court notes that the Claimant’s claim for unpaid salary for April and May 2017 is uncontested. However, given that his employment was terminated on or around 9th May 2017, I will order payment for only eight days for that month.
42. I have considered that, in this case, liability against the Respondent only attaches to the sole factor of its failure on procedural fairness, the Claimant's contribution to the summary dismissal, and the duration of his service with the Respondent. Therefore, I hereby award him one month’s gross salary.
43. In the upshot, Judgment is hereby entered for the Claimant in the following terms;
I. A declaration that the summary dismissal against him was wrongful.
II. Compensation for wrongful dismissal under section 49[1][c] of the Employment Act, one month’s gross salary, KShs 34,639.
III. Unpaid salary for April 2017, KShs. 34, 639.
IV. Unpaid salary for 8 days in May 2017, KShs. 9, 237.
V. Costs of the suit.
VI. Interest at Court rates from the date of this Judgment, till full payment.
Read, Signed and Delivered this 26th Day of May 2025.