[2018] KEELRC 2234 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA

AT NAIROBI

CAUSE NUMBER 805 OF 2013

SIMON MBITHI MBANE.......................................CLAIMANT

VERSUS

INTER SECURITY SERVICES LIMITED.......RESPONDENT

JUDGEMENT

1 By a memorandum of claim filed on 28th May, 2013 the claimant averred that he was employed by the respondent in September, 1996 as a guard at a salary of Kshs 5,796/= per month. He claimed that he served the respondent with loyalty and diligence until the respondent wrongfully and unlawfully terminated his services and refused to pay his terminal dues.

2 The respondent in its memorandum of response admitted the claimant was its employer as pleaded. The respondent further stated that on the night of 12th February 2009, the claimant was stationed at National Olympic Committee of Kenya offices as a guard when a burglary occurred leading to the loss of property belonging to NOCK.

3 The burglary was reported to Kilimani Police Station and the claimant and his colleague were taken to the police station to assist with investigations. The respondent averred that after the claimant was taken to the police station for questioning he did not report back to work and was never heard of again. The respondent therefore averred that the claimant absconded duties.

4 In his oral evidence, the claimant stated that on 12th February, 2009 he was on duty at NOCK premises when at around 2 a.m. armed thugs raided the premises and tied him up and dumped him in a garbage trench. One of the thugs guarded him while the rest stole from the premises. This took about an hour when the thugs left he screamed for help. One of the respondent’s supervisor heard and came to his rescue but he could not ……He went to the respondent’s offices and reported the issue to the police who came and took him to Kilimani Police Station. The General Manager and Chief Operations Officer came to the station and recorded his statements and told him if his case ended he could resume work.

5 On 16th February, 2009 he was taken to Kibera and charged with theft. He was thereafter remanded in custody where he stayed for four months. He was released from custody in June 2009. When he reported to the respondent’s premises he was told he could not work until his case was concluded. He was acquitted of the charges on 28th September, 2012 and thereafter reported to duty but was advised by the Chief Operating Officer that he would be placed on stand by. He remained on standby for September and October, 2012 when the Chief Operating Officer to him he could no longer work for the respondent. He asked for his termination letter but was told to get it from the General Manager. When he went to the General Manager he was not given the letter.

6 The respondent’s witness Mr Isaac Okwiry stated that he was familiar with the claimant. According to him, there was an incident at NOCK and the claimant was arrested as a suspect. He never returned to work thereafter. The Chief Operating Officer was sent to look for him but without success. According to him, the claimant was not terminated but that he absconded duties and did not return the company’s uniform and property.

7 In cross-examination he stated that he was aware of the claimants prosecution and that they used to sent a Mr Musyoka to court to follow up. He further stated that there was procedure for termination and that the claimant had never been issued with a discharge.

8 An allegation that an employee has absconded duties calls upon an employer to reasonably demonstrate that efforts were made to contact such an employee without success. It was not in dispute that the claimant underwent prosecution following the incident at NOCK premises. The respondent’s witness Mr Isaac Okwiry informed the court that they used to send a Mr Musyoka to follow up on the progress of the case.

9 Whereas the respondent avers that the claimant did not report back to work following his arrest the respondent did not tell the court whether Mr Musyoka ever asked the claimant to resume work during his visits to court to follow up on the progress of the case. This lends credence to the claimant’s allegations that he was asked to stay away from work until the criminal charges were concluded. The respondent may have felt uncomfortable retaining in its employment the claimant after being suspected of involvement in theft, his acquittal notwithstanding. However, due process as provided for in the Employment Act had to be followed.

10 The respondent’s allegation that the claimant absconded duties was inconsistent with the fact that despite the fact that Mr Musyoka used to attend court to follow up on the progress of the claimant’s criminal case there was no allegation at all that Mr Musyoka ever asked him to resume duties and he failed to do so.

11 The court therefore finds that the respondent has failed to reasonably prove that the claimant absconded duties. The court further finds that the termination of claimant’s services was unfair within the meaning of Section 45 of the Employment Act and award him a follows:

a. One month’s salary in lieu of notice 5,796

b. Seven months salary as compensation

for unfair dismissal 40,572

46,368

c. Costs in the suit

12 Other heads of claim are disallowed because although pleaded, no evidence was led to prove them.

13 It is so ordered.

Dated at Nairobi this on this 16th day of February 2018

Abuodha J. N.

Judge

Delivered on this 16th day of February 2018

Abuodha J. N.

Judge

In the presence of:-

……………...….... for the Claimant

….……………. for the Respondent