https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1818

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** **CAUSE NO. E176 OF 2017** *(Before Hon. Justice Dr. Jacob Gakeri)* **PASCALINA NTHENYA MWANGI…............................ PETITIONER** **VERSUS** **WARSAN TOYOTA GARISSA ……………………………1ST RESPONDENT** **ZAHRA ABDIAHAMAN……………………………………2ND RESPONDENT** **JUDGMENT** The claimant commenced the instant suit on 27th January 2017 vide a statement of claim of even date which was subsequently amended on 17th February 2025. The claimant alleged that the Respondent terminated her employment unfairly. The claimant’s case is that she was employed by the Respondent from 15th January 2015 or 2014. The contract on record indicated that employment commenced on 5th October 2014 at Kshs.10,000.00 per month, which the claimant averred was below the minimum wage. The claimant averred that she proceeded on maternity leave from 3rd June 2016 and was due back on 3rd September 2016 and on doing so she was told to go home and no further instructions were forthcoming from the Respondent and attempts to resolve the matter at the labour office fell through. The claimant prays for: 1. A declaration that termination of the contract of employment by the Respondent was unfair and unlawful. 2. Underpayment for unfair termination, Kshs.131,454.70 3. Salary in *lieu* of notice, Kshs.10,954.70 4. Leave days for 2014 and 2015, Kshs.8,333.30 5. Order to compel the Respondent to submit proof of remittance of NSSF and NHIF deductions or service pay at 15 days for each complete year. 6. Certificate of service 7. Costs of the suit. **Respondent’s Case** The Respondent admitted that the claimant was its employee at Kshs.10,000.00 per month payable through the claimant’s bank account, less statutory deductions. The Respondent’s case is that after the claimant proceeded on three (3) month’s leave effective 3rd June 2016, she did not resume duty in September as expected and this deserted duty. It denied having terminated the claimant’s employment unfairly and no disciplinary process was required. The Respondent prayed for dismissal of the claim with costs. **Claimant’s Submissions** As to whether the respondent followed the procedure under the Employment Act, reliance was placed on the sentiments of the court in **Benson K. Nguti v Ken Freight (EA) LTD (2014) eKLR and Mary Chemwerio Kiptui v Kenya Pipeline Co. Ltd (2014) eKLR** to submit that the provisions of section 41 of the Employment Act were not complied with. As to whether termination of the claimant’s employment was unfair and unlawful, reliance was placed on the decisions in Stephen **Were v Ketepa Sacco Ltd (2026) KEELRC 1518 (KLR)** to urge that the termination was unfair as the respondent failed to prove that it had a valid and fair reason to terminate the claimant’s employment. Also cited was the decision in **National Bank of Kenya v Njue (2019) eKLR** on the provisions of section 45 of the Employment Act. Concerning the reliefs sought, counsel submitted that the claimant was entitled to the declaration sought, Kshs.21,958.00 for underpayment, 12 months compensation Kshs.131,454.70 salary in *lieu* of notice unpaid leave (25 days) service pay Kshs.12,640.00 certificate of service costs and interest at court rate. **Respondent’s Submissions** Concerning the application of section 41 of the Employment act, counsel submitted that the provisions of section 41 were inapplicable because the respondent did not terminate the claimant’s employment as the claimant abscinded and did not present herself at the workplace or respond to communication and ignored the conciliation meeting. As to whether the claimant had proved that an unfair termination of employment occurred, reliance was placed on the provisions of section 47 (5) of the Employment Act to urge that the claimant had not discharged the burden of proof as she had no evidence of termination or communication as to how the employment relationship ended and in any event the claimant absconded duty under section 44(4) of the Employment Act as held in **Ann Njoroge v Toper Petroleum Ltd (2013) eKLR** on failure to report to work after leave. Further reliance was placed on the decision in **Julius Kyalo Malonza v Ruth Osido t/a Eraeva Catering Services Ltd (2021) eKLR** where the respondent had notified the Labour Officer of the desertion and **Pius Machafu Isindu v Lavington Security Guards Ltd (2017) eKLR** on the standard of proof to submit that the claimant had failed to prove that her employment was terminated by the respondent. On entitlement to reliefs, counsel submitted that the financial reliefs prayed for had no legal foundation in that the respondent did not terminate the claimant’s employment, her salary was agreed upon as per the contract of employment and neither notice pay or undrawn leave nor service pay was due to the claimant and the suit was for dismissal with costs. **Analysis and determination** It is not in dispute that the claimant was an employee of the Respondent effective 15th October 2014 at a monthly salary of Kshs.10,000.00 and appeared to have served diligently save for a single warning dated 8th May, 2016. It is equally not in contest that the claimant proceeded on maternity leave on 3rd June 2016 and was expected back in September 2016. Relatedly, parties are in agreement that the claimant filed a complaint with the Labour Office Garissa, delivered the Labour Officers letter to the Respondent who visited the Labour Officer’s office but the dispute was not resolved. RWII Mr. Zachariah Kase denied having received the unsigned note on record dated February 2017 allegedly by one Zahra Abdirahim and had no addressee or Respondent’s letter head. In the court’s view, the document lacked evidential value. Strangely, RWII admitted that proceedings took place at the Labour office when the Respondent visited the office in October 2016 but had no evidence of the alleged proceedings. The only contentious facts are those relating to how the parties separated. While the claimant alleged and testified that the Respondent told her that there was no employment for her after reporting from maternity leave, the Respondent, on the other hand averred and testified that the claimant deserted the work place as she did not report back from maternity leave, the issues for determination are:- 1. Whether the claimant deserted the work place or her employment was unfairly and unlawfully terminated by the Respondent. 2. Whether the claimant is entitled to the reliefs sought. As to whether the claimant deserted duty or was unfairly terminated from employment by the Respondent, the spring board is a definition of the concept of desertion. Black’s Law Dictionary 10 Edition defines desertion as:- *“The willful and unjustified abandonment of a persons duties or obligations”* In **Ronald Nyambo Daudi v Tornado carriers Ltd (2019) eKLR** Ndolo J (as she then was stated); *“Desertion of duty is a grave administrative offence which if proved would render an employee liable to summary dismissal”* *See also Ndolo J (as she then was) in* ***Evans Ochieng Oluoch Njimia Pharmaceuticals Ltd (2016) eKLR.*** *or* *The foregoing definition or explanation of desertion are clear that it takes place when an employee leaves the workplace with no intention of reporting back. See* ***Seabolo v Belgravia Hotel (1997)6 BLLR 829 (CCMA).*** The emerging jurisprudence from the Employment and Labour Relations Court is that whenever an employer pleads desertion of an employee, the employer shoulders the burden of showing that the employee deserted duty and as held in **Evans Ochieng Oluoch v Njimia Pharmaceuticals Ltd (Supra).** *“It is not enough for an employer to simply state that an employee has deserted duty.”* The employer establishes desertion by evidence of the steps taken or reasonable efforts made to ascertain the whereabout of the employee to resume duty or demonstrate why disciplinary action should not be taken against him or her for being absent, which amounts to gross misconduct. Evidence of calls made, messages sent are part of the steps taken. In addition, service of a notice to show cause upon the employee who is alleged to have deserted duty is an important requirement. The employee must have been made aware that if he or she does not report to work disciplinary action would be taken. In **Felistas Acheha Ikatwa v Peter Otieno (2018) eKLR**. Linnet Ndolo J (as she then was) stated:- *“The law is therefore well settled that an employer claiming that an employee has deserted duty must demonstrate efforts made towards getting the employee 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.”* See also in this regard **Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School (2015) eKLR Dickson Matingi v Db Schenker Ltd (2016) eKLR, Boniface Francis Mwangi v Iyego B. O.M Secondary School (2019) eKLR and Simon Mbithi Mbane v Inter Security Services Ltd (2018) eKLR.** In this case RWI Mr. James Injela confirmed, on cross-examination that the Respondent did not serve a notice to show cause because the claimant was nowhere to be found, but also confirmed that the claimant served the Labour Officer’s letter on the Respondent. The witness further confirmed that the alleged desertion of duty by the claimant was not reported to anyone. Equally, the witness confirmed that the Respondent’s response to the advocates letter dated 27th September 2016 did not indicate that the claimant had deserted the workplace or absconded duty. The witness testified that the desertion led to the non-issuance of the certificate of service to the claimant. Cross-examination, the witness maintained that the claimant never resumed duty after her maternity leave and was not dismissed during leave, yet the claimant served the Respondent with a letter from the Labour Office on 6th October 2016, 3 days after the reporting date and the complaint was termination of employment. Neither of the Respondent’s witnesses alleged or demonstrated having called the claimant on her cellphone number or having sent a message or letter to her to resume duty, if indeed she had indeed deserted duty. Flowing from the foregoing it is the finding of this count that the Respondent has failed to discharge the burden of proof that the claimant deserted the workplace. On unfair or unlawful termination of employment, the claimant testified that when she resumed duty in September 2016, the Respondent’s General Manager told her that there was no work for her after tossing her from the office of General Manager to the office of the manager and the dismissal was by work of mouth. The claimant testified that the verbal dismissal precipitated the complaint to the Labour office. On re-examination, the claimant maintained that she was tossed from the Office of Manager, one James to that of the General Manager but the General Manager terminated his employment. In determining this issue, the court funded by the sentiments of Maureen Onyango J in **Judith Atieno Owuor v Sameer Agriculture & Liverstock Ltd (2010) KEELRC 609 (KLR)** helpful: thus; *“Further, even if she absconded, she is by law entitled to a fair disciplinary process as set out in section 41 of the Employment Act. 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…”* These sentiments apply on all fours to the circumstances of the instant suit. This is fortified by the sentiments of Linnet Ndolo J (as she then was) in **Walter Ogal Anuro v Teachers Service Commission (2013) eKLR**,thus: *“…For a termination of the pass the fairness test – there must be both substantive justification and procedural fairness. Substantive justification has to do with establishment of a valid reason for the termination while procedural fairness addresses the procedure adopted by the employer to effect the termination.”* In the instant case the Respondent adduced no evidence of a substantive justification to terminate the claimant’s employment or having complied with the procedural requirements of section 41 of the Employment Act. RWI confirmed, on cross-examination that the Respondent did not issue a notice to show cause or conduct any disciplinary proceedings. Section 45(1) of the Employment Act provides:- 1. No employer shall terminate the employment of an employee unfairly. In addition, the provisions of section 45 prescribe the essentials of a fair termination of employment. Having failed to demonstrate compliance with the provisions of the Employment Act and in particular section 41 and 45 of the Act, the inescapable finding is that termination of the claimant’s employment by the Respondent was unfair and unlawful. **Reliefs** Having found as above, the claimant is entitled to certain reliefs. 1. The Declaration prayed for is merited and is decreed. 2. Under payment. It is not in dispute that the claimant’s salary was Kshs.11,623.17 per month. Under the Regulation of Wages General (Amendment Order) 2013 effective 1st May 2013 the minimum at Garissa was Kshs.9024.15 exclusive of house allowance of Kshs.1,353.62 total Kshs.10,377.77. Under the Regulation of Wages General (Amendment Order) 2015, the salary was Kshs.10,107.10 plus house allowance, Kshs.11,623.17. Clearly, the claimant was under paid by Kshs.31,147.59 1. Salary in *lieu* of notice. The claimant is entitled to pay in *lieu* of notice Kshs.11,623.17. 1. 25 leave days Neither the claimants written witness statement nor the oral testimony adverted to the fact that the claimant did not proceed on leave and/or the number of leave days were unutilized. The prayer is declined. 1. Evidence of remittance of NSSF and NHIF deductions. The claimant admitted on cross-examination that the Respondent deducted and remitted NSSF and NHIF but had no evidence. Both the NSSF and NHIF are statutory bodies with boards with statutory powers to enforce remittance of deductions. The prayer is declined. 1. 12 months compensation Having found that termination of the claimant’s employment by the Respondent was unfair, the claimant is entitled to the relief under section 49(1) (c) of the Employment Act. In determining the quantum of compensation, the court has considered that; 1. The claimant served the Respondent for almost 3 years, which is not long. 2. The claimant had a warning letter dated May 2016. 3. The claimant did not appeal the decision or express her wish to remain in employment. 4. The claimant did not contribute to the termination of employment. In the circumstances the equivalent of 4 months gross salary is sufficient Kshs.46,492.68. A certificate of service is a statutory right by dint of section 51 of the Employment Act and ought to be provided after separation. In conclusion, judgment is entered in favour of the claimant against the Respondent as follows; 1. Declaration that termination of employment was unfair. 2. Underpayment, Kshs.31,147.59. 3. Equivalent of four months gross salary, Kshs.46,492.68. 4. Salary in *lieu* of notice, Kshs.11,623.17. 5. Certificate of service. 6. Interest on (b), (c), and (d) above. 7. Costs of the suit. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 22ND JUNE, 2026.** **DR. JACOB GAKERI** **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 affordable resolution of civil disputes.** **DR. JACOB GAKERI** **JUDGE**