Okelo v Keen Kleeners Ltd (Cause E717 of 2024) [2026] KEMC 463 (KLR) (30 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATES COURT CIVIL** **MCELRC CAUSE NO. E717 OF 2024** **DAVID OUMA OKELO……......……….….……...………………………….…CLAIMANT** **VERSUS** **KEEN KLEENERS LIMITED……………….…………………….…………….RESPONDENT** **JUDGEMENT** **Introduction** 1. The Claimant commenced these proceedings by a Memorandum of Claim dated 7th November 2024 seeking reliefs arising from what he terms as unlawful, unfair and unprocedural termination of his employment by the Respondent. He seeks compensation for unfair termination, one month's salary in lieu of notice, house allowance, leave pay, service pay, general damages, a certificate of service, costs of the suit and interest. 2. The Respondent entered appearance and filed a Statement of Response together with a Counterclaim dated 5th June 2025 denying liability. The Respondent's case is that the Claimant was never dismissed but voluntarily abandoned his employment after absconding duty and consequently breached the employment contract by failing to issue the contractual one month's notice before leaving employment. 3. Pursuant to Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, the parties agreed that the matter be determined on the basis of the pleadings, witness statements, documentary evidence and written submissions without calling viva voce evidence. **The Claimant's Case** 1. The Claimant states that he was employed by the Respondent as a gardener on 17th November 2021 and earned a consolidated monthly salary of Kshs.17,122. He avers that throughout his employment he diligently discharged his duties to the satisfaction of the Respondent but was never issued with a written contract or letter of appointment. 2. It is the Claimant's case that on 31st December 2022 he reported to work as usual only to be informed that he had been dismissed and instructed never to return to work. In his witness statement he further states that he was informed that his services were no longer required owing to his poor health. 3. According to the Claimant, he was not issued with any notice of termination, was never invited to any disciplinary hearing, was not issued with a notice to show cause, was never informed of the reasons for termination and was not paid any terminal dues. 4. The Claimant further states that he had never been subjected to any disciplinary proceedings during his employment, had not received any warning and had not proceeded on annual leave during the period of employment. 5. The Claimant consequently prays for: 6. Twelve months' compensation for unfair termination amounting to Kshs.205,464; 7. One month's salary in lieu of notice amounting to Kshs.17,122; 8. House allowance amounting to Kshs.30,820; 9. Leave pay amounting to Kshs.11,985; 10. Service pay amounting to Kshs.8,561; 11. General damages; 12. Certificate of service; 13. Costs and interest. 14. In support of his claim, the Claimant produced a payslip for July 2022, a sick sheet issued by Voyager Beach Resort, a demand letter dated 1st November 2024 and copies of his pleadings. **The Respondent's Case** 1. The Respondent admits that there existed an employer-employee relationship between the parties and that the Claimant worked as a gardener at Voyager Hotel where the Respondent had secured a cleaning contract. 2. The Respondent however disputes the date of engagement pleaded by the Claimant and relies upon a written contract of employment commencing on 1st March 2022 together with an extension extending the contract from 1st January 2023 to 28th February 2023. 3. According to the Respondent, the Claimant reported to work on 1st January 2023 but thereafter absconded duty and never resumed work despite efforts by the Respondent to reach him. 4. The Respondent maintains that owing to the prolonged absenteeism, it genuinely believed that the Claimant had voluntarily resigned from employment and consequently notified the Labour Officer by letter dated 28th April 2023 that the Claimant had absconded duty. 5. It is therefore the Respondent's case that the Claimant was never dismissed and that there was no unlawful or unfair termination capable of attracting the remedies sought. 6. By way of Counterclaim, the Respondent seeks one month's salary in lieu of notice amounting to Kshs.17,122 together with costs and interest on the basis that the Claimant breached the employment contract by leaving employment without the contractual notice. **Submissions** 1. Both parties filed comprehensive written submissions reiterating their respective pleadings. 2. The Claimant submits that the Respondent failed to comply with sections 35, 41, 43 and 45 of the Employment Act and therefore the termination was procedurally and substantively unfair. 3. The Respondent on the other hand submits that the Claimant failed to discharge the burden placed upon him by section 47(5) of the Employment Act and that the evidence demonstrates that the Claimant voluntarily abandoned his employment. **Issues for Determination** 1. Having considered the pleadings, documentary evidence and submissions filed by the parties, the issues falling for determination are: 2. Whether there existed an employer-employee relationship between the parties. 3. Whether the Claimant's employment was terminated by the Respondent or whether the Claimant absconded duty. 4. If there was termination, whether the same was unfair and unlawful. 5. Whether the Claimant is entitled to the reliefs sought. 6. Whether the Respondent has proved its Counterclaim. Whether there existed an employment relationship 1. The existence of an employment relationship is not disputed. Both parties agree that the Claimant served as a gardener at Voyager Hotel under the Respondent. 2. The only point of departure concerns the commencement date of employment. The Claimant pleads that he was employed on 17th November 2021 whereas the Respondent relies upon a written contract commencing on 1st March 2022. 3. Although the Claimant alleges that he was never issued with a written contract, the Respondent produced a signed contract of employment together with a subsequent contract extension bearing the Claimant's name and signature. The authenticity of those documents was not specifically challenged nor was any evidence led to demonstrate that the signatures appearing thereon were not those of the Claimant. 4. Equally, the July 2022 payslip produced by the Claimant is consistent with the Respondent's position that there existed a formal contractual employment relationship. 5. The Court therefore finds that there existed an employment relationship between the parties and that the Claimant served as a gardener under the Respondent. Whether the Claimant was unfairly terminated 1. The central dispute in this matter is whether the Claimant was dismissed on 31st December 2022 as alleged or whether he voluntarily absconded duty from January 2023 as contended by the Respondent. 2. Under sections 43, 45 and 47(5) of the Employment Act, the initial burden rests upon an employee to demonstrate that a termination occurred before the employer is called upon to justify the reasons for such termination. 3. The Claimant's evidence is that he was verbally dismissed on 31st December 2022. However, the Respondent produced attendance worksheets indicating that the Claimant reported for duty on 1st January 2023. Those worksheets were accompanied by handwritten annotations indicating that 1st January 2023 was the last day the Claimant reported for duty. 4. The Court has carefully examined those worksheets. Although they are not conclusive proof on their own, they lend support to the Respondent's assertion that the Claimant reported to work after the date on which he alleges he had already been dismissed. 5. If indeed the Claimant had been dismissed on 31st December 2022 and instructed never to return to work, it would be difficult to reconcile that assertion with documentary evidence showing that he attended work on 1st January 2023. 6. The Respondent also produced the letter dated 28th April 2023 addressed to the Labour Office notifying it that the Claimant had absconded duty and that the Respondent regarded the prolonged absence as voluntary resignation. That letter was made several months before institution of these proceedings and was received by the Labour Office. 7. Although notification to the Labour Office does not by itself establish abscondment, it is consistent with the Respondent's version that it believed the Claimant had abandoned his employment rather than having been dismissed. 8. Whether the Claimant proved unfair termination 9. The Respondent's position is that after the Claimant failed to report to work following 1st January 2023, several attempts were made to contact him without success and, ultimately, the Respondent treated his continued absence as voluntary resignation. It therefore contends that there was no dismissal capable of attracting the remedies sought under the Employment Act. 10. The Court appreciates that abscondment of duty is itself a form of misconduct recognised under the Employment Act. However, an employer who alleges that an employee has absconded duty is not thereby relieved of the obligation to demonstrate the steps taken to establish the employee's whereabouts and, where appropriate, to commence disciplinary proceedings. Before treating an employee as having deserted employment, the employer is expected to make reasonable efforts to reach the employee and accord him an opportunity to explain his absence. 11. In the present case, the Respondent asserts that it made efforts to contact the Claimant but no evidence was placed before the Court showing the nature of those efforts. No letters requiring the Claimant to resume duty, notices to show cause, telephone records, text messages or other correspondence were produced. The only document produced is the letter dated 28th April 2023 notifying the Labour Officer that the Respondent had treated the Claimant's prolonged absence as voluntary resignation. 12. That letter merely communicated a decision already reached by the Respondent. It was not addressed to the Claimant and does not demonstrate that he had first been called upon to explain his absence. Consequently, although the Respondent may genuinely have believed that the Claimant had abandoned his employment, the documentary evidence falls short of demonstrating compliance with the procedural safeguards contemplated under the Employment Act. 13. On the other hand, the Claimant's own evidence is not entirely consistent. Whereas he pleaded that he was dismissed on 31st December 2022, the Respondent produced attendance records indicating that he worked on 1st January 2023. The Claimant neither challenged those records nor offered any explanation regarding the apparent inconsistency. The Court is therefore unable to accept, without reservation, the allegation that his employment came to an end on 31st December 2022. 14. The Court must therefore determine the matter on the totality of the evidence. While the Claimant has not satisfactorily proved that he was verbally dismissed on 31st December 2022, the Respondent equally failed to demonstrate that it followed a fair procedure before concluding that the Claimant had deserted duty. The Employment Act requires procedural fairness even where the alleged misconduct is abscondment. 15. Section 41 of the Employment Act obliges an employer to hear and consider an employee's explanation before termination on grounds of misconduct. Desertion or absenteeism falls within the category of misconduct contemplated under that section. The Respondent did not demonstrate that any disciplinary process was undertaken prior to bringing the employment relationship to an end. 16. Accordingly, the Court finds that although the Claimant's conduct gave rise to a reasonable belief that he had absented himself from work, the Respondent did not prove compliance with the procedural requirements of the Employment Act before determining the employment relationship. The separation therefore fell short of the procedural fairness required by law. 17. The Court consequently finds that the Claimant has proved procedural unfairness but not substantive unfairness to the extent alleged in the Memorandum of Claim. The circumstances disclosed by the evidence reveal that both parties contributed to the manner in which the employment relationship came to an end. The Claimant failed to satisfactorily explain his prolonged absence from work, while the Respondent failed to invoke the statutory disciplinary process before treating that absence as termination of employment. **Reliefs** Compensation for unfair termination 1. Under section 49 of the Employment Act, compensation is discretionary and depends upon the circumstances of each case. In assessing the appropriate award, the Court has considered: the relatively short period of service; the uncertainty surrounding the manner in which the employment relationship ended; the Claimant's contribution to the circumstances leading to the separation; the Respondent's failure to comply with procedural fairness. 2. In those circumstances, an award equivalent to the maximum twelve months' salary would be excessive. The Court considers that an award equivalent to three (3) months' gross salary appropriately compensates the Claimant for the procedural unfairness established. The Claimant is therefore awarded: Kshs. 51,366 (3 × Kshs. 17,122). One month's salary in lieu of notice 1. The evidence does not establish that the Respondent expressly terminated the Claimant's employment without notice. Equally, the evidence demonstrates that the Claimant ceased reporting to work after 1st January 2023. 2. In those circumstances, the Court is not persuaded that the Claimant has established entitlement to notice pay. The prayer for Kshs. 17,122 under this head is declined. House allowance 1. The Claimant sought house allowance amounting to Kshs. 30,820. However, the documentary evidence produced by the Respondent includes the written contract of employment showing that house allowance formed part of the Claimant's remuneration. Moreover, the Claimant's own payslip reflects a structured salary inconsistent with the assertion that no housing component was provided. 2. The Claimant did not produce any computation or evidence demonstrating that the salary paid excluded house allowance. This claim therefore fails. Leave pay 1. The Claimant claims leave pay amounting to Kshs. 11,985. The burden rested upon the Respondent to maintain employment records, including leave records. No leave register was produced before Court. 2. Although the Respondent points to one payslip reflecting payment of leave, that single payslip is insufficient to demonstrate that the Claimant utilised or was paid for all accrued leave during the entire period of employment. In the absence of proper leave records, the Court draws an adverse inference against the Respondent. The Claimant is awarded Kshs. 11,985 for accrued leave. Service Pay 1. The Claimant seeks Kshs. 8,561 as service pay. The Respondent opposes this claim on the ground that the Claimant was a contributor to the National Social Security Fund (NSSF), and therefore falls within the exception created under section 35(6) of the Employment Act. 2. The payslip produced by the Claimant clearly reflects statutory deductions towards the National Social Security Fund. The Claimant did not dispute his NSSF membership nor produce evidence demonstrating that such deductions were not remitted. 3. Section 35(6)(d) of the Employment Act expressly excludes an employee who is a member of the National Social Security Fund or any other statutory social security scheme from entitlement to service pay. Consequently, the claim for Kshs. 8,561 as service pay is without legal basis and is dismissed. General Damages 1. The Claimant also seeks general damages. The Employment Act is a complete code on remedies available for unfair termination. The remedies available are those expressly provided under section 49 of the Act, including compensation, notice pay and other specified reliefs. 2. Having already awarded compensation for procedural unfairness, a separate award of general damages would amount to double compensation for the same cause of action. 3. The prayer for general damages is therefore declined. Certificate of Service 1. Under section 51 of the Employment Act, every employee whose contract has come to an end is entitled to a certificate of service unless the employment falls within the statutory exceptions, none of which applies in the present case. 2. The Respondent shall issue the Claimant with a Certificate of Service within thirty (30) days from the date of this Judgment. **Counterclaim** 1. The Respondent seeks one month's salary in lieu of notice on the basis that the Claimant abandoned employment without issuing the contractual notice. A counterclaim, like any other civil claim, must be proved on a balance of probabilities. 2. Although the Respondent produced attendance worksheets and the letter to the Labour Officer, it did not produce evidence demonstrating that it formally accepted the alleged resignation or communicated its demand for notice pay to the Claimant before instituting these proceedings. 3. More importantly, the Court has already found that the Respondent did not comply with the procedural requirements of the Employment Act before bringing the employment relationship to an end. Having failed to follow the statutory process, the Respondent cannot at the same time successfully recover damages arising from the same separation. 4. In the circumstances, the Court finds that the Respondent has not proved its counterclaim on a balance of probabilities. The counterclaim is accordingly dismissed. **Costs** 1. Costs ordinarily follow the event. However, the Court has found that both parties contributed to the circumstances giving rise to this litigation. 2. The Claimant did not satisfactorily explain his absence from work after 1st January 2023, while the Respondent failed to comply with the procedural requirements prescribed by the Employment Act before treating the employment relationship as terminated. 3. In view of the mixed success by both parties, the Court considers it just that each party bears its own costs of the suit and of the counterclaim. **Disposition** 1. In the result, Judgment is entered for the Claimant against the Respondent as follows: 2. A declaration is hereby issued that the termination of the Claimant's employment was procedurally unfair. 3. Compensation equivalent to three (3) months' gross salary is awarded in the sum of Kshs. 51,366. 4. Leave pay in the sum of Kshs. 11,985 is awarded. Total monetary award: 63,351. 1. The claim for one month's salary in lieu of notice is dismissed. 2. The claim for house allowance is dismissed. 3. The claim for service pay is dismissed. 4. The claim for general damages is dismissed. 5. The Respondent shall issue the Claimant with a Certificate of Service within thirty (30) days of this Judgment. 6. The Respondent's counterclaim is dismissed. 7. The sums awarded shall attract interest at court rates from the date of this Judgment until payment in full. 8. Each party shall bear its own costs. Orders accordingly. **DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOSFT TEAMS AT MOMBASA THIS 30TH JULY 2026.** **……………………………………………….** **EMILY M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**