https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1563

Kakuthu v Career Directions Limited & another (Civil Suit 68 of 2018) [2026] KEELRC 1563 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1563 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Civil Suit 68 of 2018 K Ocharo, J May 28, 2026 Between Ezekiel Kakuthu Claimant and Career Directions Limited 1st Respondent Bollore Africa Logistics Group 2nd Respondent Judgment 1.By a Memorandum of Claim dated 8th January 2018, the Claimant initiated legal proceedings against the Respondents, jointly and severally, seeking the following reliefs;a)A declaration that the termination of the Claimant’s employment was unlawful and unfair.b)That the respondents be compelled to pay the following as final terminal and other dues to the claimant;i)Salary in lieu of notice KShs. 34,421.63ii)Leave allowance KShs. 34,421.63iii)Holidays KShs. 71,711.73iv)Off days KShs. 51,632.28v)Compensation for unlawful termination Ksh. 600,000.00TOTAL = Ksh.792,187.27vi)Certificate of servicevii)Costs and interest of the suit at the court's rate. 2.The Respondents, through their respective Memoranda of Response, denied the Claimant’s cause of action against them and the Claimant’s entitlement to the reliefs sought, each setting out the reasons in its respective Memorandum. 3.At the hearing, the parties adopted their witness statements filed herein as their evidence in chief and tendered their documents filed under their respective lists of documents as documentary evidence. Claimant’s case 4.It was the Claimant’s case that he was first employed by the 1st Respondent and seconded to the 2nd Respondent in 2013 as a driver, earning a monthly salary of Kshs. 34,421.63, comprising basic pay and house allowance. 5.The Claimant further stated that he worked from Monday to Saturday, and sometimes on Sundays and public holidays, depending on the workload. He averred that, despite having been employed since 2013, he was not issued an employment contract until 1st June 2016, when he was issued one to run until 31st May 2017. 6.Nevertheless, prior to its expiration, on 29th December 2016, the Respondents purportedly unlawfully terminated his employment. He asserts that upon reporting for duty, he was denied entry and was advised that Madam Mariam Alavi had instructed security not to permit his access. 7.He asserted that the termination was conducted in bad faith, lacked foundation and substantiation, and violated section 41(1) of the Employment Act, 2007, due to the absence of a fair process. Additionally, the termination was without any justifiable, valid and fair reason. 8.The Claimant further alleges that the Respondents failed or refused to pay his terminal dues despite a demand letter issued by his advocates on 15th May 2017. 9.Consequently, he prayed for a declaration that the termination was unlawful and unfair, payment of terminal dues totalling Kshs. 792,187.27, comprising salary in lieu of notice, leave allowance, holidays, off days, and compensation for unfair termination, together with a certificate of service, costs, and interest. 10.Cross-examined by Counsel for the 1st Respondent, the Claimant testified that he had an employment contract with the 1st Respondent. The contract set out the terms and conditions of employment. In his role as a driver, he would supply documents for the 2nd Respondent. 11.He testified that his employment was terminated by the 2nd Respondent. The termination was verbal, and no termination letter was issued. On the material day, the security personnel refused to admit him to the workplace, allegedly pursuant to the 2nd Respondent's instructions. 12.Cross-examined by Counsel for the 2nd Respondent, the Claimant further testified that he was interviewed by the 1st Respondent for the role. It was the 1st Respondent who gave him a contract of employment. 13.He testified that per his contract of employment, his monthly salary was KShs. 19,800. The amount was inclusive of house allowance. 14.He reiterated that his contract was in nature fixed -term. It had an appointed lapse date of 31st May 2017. However, the contract was terminated before this appointed lapse date. 15.His contract of employment provided for an entitlement of 21 days of leave annually. 1st Respondent’s case 16.The First Respondent called a witness, Rodgers Wafula, its Legal Officer, to testify on its behalf. The witness stated that the First Respondent employed the Claimant on or about 1st June 2016, as a driver seconded to the Second Respondent. It was a term of the employment contract that the contract would lapse on 31st March 2017. The agreed gross salary was KShs. 19,890.63. 17.The witness further stated that in January 2017, the Claimant reported to work for only 10 days and thereafter ceased reporting. The Respondent made several attempts to contact him without success. The Claimant never returned to work or offered any explanation for his continued absenteeism, and instead filed the present claim on 8th January 2018, alleging unlawful termination. 18.The 1st Respondent maintained that all dues payable to the Claimant during his employment were paid, denied receipt of any demand letter, and stated that the Claimant is not entitled to the reliefs sought. It therefore prays that the suit be dismissed with costs. 19.Cross-examined by Counsel for the Claimant, the witness testified that the Claimant was seconded to the 2nd Respondent. After he was so seconded, he was reporting to the 1st Respondent’s representative, who was stationed at the 2nd Respondent’s premises. 20.Cross-examined by Counsel for the 2nd Respondent, the witness testified that the 1st and 2nd Respondents had a contract between them under which the 1st Respondent would supply labour to the 2nd Respondent. The contract was entered into on 21st February 2014. It was under the agreement that the Claimant was seconded to the 2nd Respondent. 21.The 1st Respondent engaged the Claimant under a fixed-term contract. 22.The 1st Respondent did not issue the Claimant with a termination letter because he had absconded from duty. The contract between it and the Claimant would not be terminated by a third party. 23.The Claimant did not inform the 1st Respondent of the reason why he stopped reporting for work. 2nd Respondent’s case 24.The 1st Respondent called one witness, Maurice Lugadiro, to give evidence on its behalf. The witness stated that the Respondent does not directly employ casual workers. It sources them on an as-needed basis through the 1st Respondent. 25.He further stated that casual employees were sourced as such, remained at all material times, employees of the 1st Respondent. However, the 2nd Respondent at all material times maintained records of all persons, including the casual employees, for the purposes of in case an accident/ incident occurred on its premises. 26.The 2nd Respondent further states that its engagement with outsourced labour was governed by an Agreement for Provision and Management of Outsourced Labour dated 21st February 2014 between itself and the 1st Respondent, and therefore it had no capacity to terminate the Claimant’s employment. Analysis and determination 27.I have carefully considered the pleadings, witness statements and submissions on record, and the following issues emerge for determination;a.Whose employee was the Claimant?b.Whether the Claimant’s employment was unfairly and unlawfully terminated;c.Whether the Claimant is entitled to the remedies sought; Whose employee was the Claimant? 28.From the Claimant’s pleadings and witness statement, the Claimant was deliberately or otherwise vague as to whose employee he was. However, the common thread that emerges throughout the Claimant’s evidence under cross-examination and that of the Respondents’ witnesses is that the Claimant was an employee of the 1st Respondent, who was seconded by the 1st Respondent to serve the 2nd Respondent under an outsourcing agreement between the Respondents. I have no hesitation in concluding, therefore, that the Claimant was at all material times an employee of the 1st Respondent. 29.In light of the foregoing premises, this Court fails to fathom what informed the Claimant’s decision to sue the 2nd Respondent. His case against the 2nd Respondent is hereby dismissed with costs. Whether the Claimant’s employment was unfairly and unlawfully terminated 30.Having found as I have hereinabove, I now turn to consider whether the Claimant’s employment was terminated at the initiative of the 1st Respondent and unfairly. 31.No doubt, the legislation on unfair termination/dismissal represents a major incursion into the common law, limiting the employer’s otherwise open-ended power to bring the contract of employment to an end without substantive justification, and imposing general standards of procedural fairness on the process of termination/dismissal. Section 45 of the Employment Act expressly prohibits the employer from terminating an employee’s employment unfairly. Sub-section 2 thereof provides insight into what constitutes unfair termination, namely, one that is not founded on fair procedure and valid and fair reasons. 32.In Pius Machafu Isundu v Lavington Security Guards Limited [2017] eKLR, the Court of Appeal elaborated the position, thus;“There can be no doubt that the Act, which was enacted in 2007, places a heavy legal obligation on the employer in matters of summary dismissal for breach of employment contracts and unfair termination involving breach of statutory law. The employer must prove the reasons for terminating [section 43]-prove that the reasons are valid and fair [Section 45]-prove that the grounds are justified [Section 47[5], among other provisions. A mandatory and elaborate process is then set up under section 41, requiring notification and hearing before termination.” 33.In the present case, the Claimant alleges that he was terminated on 29th December 2016 after reporting for duty and being denied entry to the 2nd Respondent’s premises on the instructions of Ms Mariam Alavi. The 1st Respondent, on the other hand, contends that the Claimant’s employment was not terminated at its initiative, as alleged by the Claimant. The Claimant deserted duty on 10th January 2017 and never reported for duty thereafter, only to be shocked by the instant suit. 34.Desertion of duty may constitute a legitimate basis for the termination of an employee’s employment or even for summary dismissal. However, where the employer seeks to justify a termination on the ground that the employee deserted duty, the burden rests upon the employer to demonstrate that the employee voluntarily and without lawful cause absented himself from work with no intention of returning. Mere absence from the workplace, however prolonged, does not by itself amount to desertion. 35.An allegation of desertion obligates the employer to show that reasonable and genuine efforts were made to trace the employee and establish the reason for the absence. Such efforts may include attempts to contact the employee by telephone, text message, email, letter, or visit to the employee’s last known address, or by reaching out to the employee’s next of kin or emergency contacts. The employer must further demonstrate that the employee was called upon to explain the absence and warned of the consequences of failure. 36.In my view, the rationale is simple. Employees fail to report to work for reasons beyond their control, including illness, accident, incarceration, or other unforeseen circumstances. Fair labour practice demands that an employer does not hastily conclude that an employee has abandoned employment without first making reasonable inquiries into the circumstances surrounding the absence. 37.Where no evidence is tendered to show any effort to trace the employee or to ascertain the reason for the absence, a claim of desertion becomes suspect. In such circumstances, the court is entitled to conclude that the employer did not prove the reason for termination and that there was a valid and fair reason for the termination. 38.I have carefully considered the evidence tendered by the 1st Respondent’s witness. From that evidence, the only discernible point is the general assertion that the 1st Respondent made efforts to trace the Claimant without success. The witness did not explain when or how. In the circumstances, I come to the inevitable conclusion that the 1st Respondent failed to demonstrate that the Claimant deserted duty, and that, as such, they had a valid and fair reason to terminate his employment. Further, the Claimant’s explanation that his employment was terminated at the initiative of the 1st Respondent and unfairly so stands unrebutted. 39.The procedure contemplated under Section 41 is mandatory and comprises three components: notification, hearing, and consideration. The employer contemplating termination must notify the employee of the intention and the grounds for it. They must then allow the employee adequate time to prepare and to defend themselves against the accusations. Lastly, the employer must consider the representations made by the employee and/or the person accompanying them before making a final decision on the matter. 40.The Claimant asserted that the Respondent did not adhere to the procedural fairness requirements set out in the said provision, and therefore, the termination of his employment was procedurally unfair. Blinded by the position they took, the 1st Respondent did not present evidence to demonstrate adherence to the dictates. 41.By reason of the foregoing, this Court concludes that the Claimant’s employment was terminated at the initiative of the 1st Respondent, and that the termination was procedurally and substantively unfair. Whether the Claimant is entitled to the remedies sought 42.The Claimant seeks one month’s salary in lieu of notice, in the sum of KShs. 34,421.63. At this juncture, it is important to note that, on the evidence on record, it cannot be concluded that the Claimant’s monthly salary was KShs. 34,421.63 as he alleged. This Court is persuaded by the 1st Respondent’s position that the salary was KShs. 19,890.63, as that position, in my view, finds foundation in the employment contract. 43.The Claimant’s employment was terminable by notice. No doubt, none was issued by his employer, the 1st Respondent. I hereby find that he is entitled to notice pay of one month’s salary. 44.The Claimant’s claim for leave allowance in the sum of KShs. 34,421.63 is one for declining. The Claimant did not lay a proper contractual, statutory, or any other basis for the same. 45.The Claimant also seeks KShs. 71,711.73 for holidays and KShs. 51,632.28 for off days. Although he stated that he worked from Monday to Saturday, sometimes on Sundays and public holidays, depending on the workload, he did not specify which public holidays were worked, the number of off days allegedly not taken, the period covered by the claim, the applicable rate, or the method used to arrive at the sums pleaded. The figures were simply thrown to court. 46.Furthermore, these claims are inherently special claims and should have been explicitly pleaded and rigorously substantiated. Due to the lack of detailed particulars and corroborative evidence, the claims regarding holidays and days off are hereby dismissed. 47.Section 49[1][c] of the Employment Act vests this Court with the authority to award compensation to an employee who has successfully challenged their employer’s decision to unfairly terminate their employment. However, it is important to note that the authority is discretionary and is exercised depending on the circumstances of each case. I have carefully considered the circumstances in which the termination occurred, the period that was remaining on the Claimant’s contract of employment, and the fact that the Claimant did not in any proven manner contribute to the termination of his employment, and conclude that he is entitled to the compensatory relief to an extent of four months’ gross salary. 48.In the upshot, Judgment is hereby entered for the Claimant in the following terms;I.A declaration that at all material times, he was an employee of the 1st Respondent and not the 2nd Respondent.II.A declaration that his employment was unfairly terminated at the initiative of the 1st Respondent.III.Compensation for unfair termination pursuant to the provisions of section 49[1][c] of the Employment Act, four [4] months’ gross salary, KShs. 79, 890.63.IV.One month’s salary in lieu of notice, KShs. 19, 890.63.V.Interest at Court rates from the date of this judgment till full payment.VI.Costs of this suit. READ, SIGNED AND DELIVERED THIS 28TH DAY OF MAY 2026.OCHARO KEBIRAJUDGE