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ELRCPartially AllowedCause No. 1344 of 2014

Chrispine Onguso Okinyi v Devki Steel Mills Limited [2018] KEELRC 40 (KLR)

Industrial Court of Kenya
20 December 2018
2,311 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan employer claiming an employee 'deserted' must prove it with records and evidence, otherwise the dismissal is unfair and compensation follows.

What this practically means

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Executive summary

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The claimant, employed as a machine helper from 1st September 2008, alleged that on 14th September 2012 a straightening machine crushed and fractured his fingers, leading to amputation of three fingers on his right hand, and that in October 2012 the respondent unfairly terminated his services without dues and blocked his access to the premises. He sought a declaration of unfair termination, twelve months' compensation, salary arrears, notice pay, leave pay and Kshs.1,440,000.00 as permanent disablement compensation under the Work Injury Benefits Act, 2007. The respondent denied the claim, asserting a safe working environment, that the claimant's own negligence caused the injury, and that he deserted duty and never resumed work, so no termination arose. The court framed five issues and found that although he who alleges must prove, an employer relying on desertion must demonstrate it on a balance of probability, including evidence of steps and disciplinary action taken; the respondent produced no such evidence and no employment records as required by sections 9, 10 and 74 of the Employment Act. A termination was therefore found and held unlawful in the absence of any defence to the fairness of the termination. The court declared the termination wrongful, unfair and unlawful and awarded one month's salary in lieu of notice (Kshs.15,000.00), salary for October 2012 (Kshs.15,000.00) and twelve months' compensation (Kshs.180,000.00), totaling Kshs.210,000.00. The WIBA permanent disability claim was declined for want of jurisdiction, the court leaving the issue open. Costs were awarded to the claimant against the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there was a termination of the employment of the claimant by the respondent?
  2. 2.Whether the termination, if at all, was wrongful, unfair and unlawful.
  3. 3.Is the claimant entitled to the relief sought?
  4. 4.Whether the claimant is entitled to compensation for permanent disability under the Work Injury Benefits Act, 2007?
  5. 5.Who bears the costs of the claim?

Key legal issues

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01

Whether there was a termination of the claimant's employment

Holding

A termination ensued. The respondent's defence of desertion was not proved to the required standard; the employer bore the onus of demonstrating steps taken upon alleged desertion and produced no employment records.

Reasoning

The court held that while he who alleges must prove, an employer pleading desertion must demonstrate it on a balance of probability, including evidence of disciplinary action. Sections 9, 10 and 74 of the Employment Act require the employer to maintain records; the absence of records left the court unable to verify the respondent's account, and the claimant could not be blamed for lack of proof of the defence.

p. 4
02

Whether the termination was wrongful, unfair and unlawful

Holding

The termination was unlawful, there being no defence to the claim of unlawful termination.

Reasoning

Having found a termination occurred, the court noted the respondent had not mounted a defence of lawful termination. In the absence of such a defence, the claimant succeeded on the fairness issue and became entitled to the relief sought, including the declaration, notice pay, October 2012 salary and twelve months' compensation.

p. 4
03

Whether the claimant is entitled to compensation for permanent disability under WIBA

Holding

The court declined to award WIBA compensation for lack of jurisdiction, leaving the question open.

Reasoning

The claimant sought Kshs.1,440,000.00 as compensation for permanent disablement under section 30 of the Work Injury Benefits Act, 2007. The court held it lacked jurisdiction over this subject matter and left the issue open, effectively severing that head of claim from the award on termination.

p. 4

Legal principles established

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  • Where an employer relies on a defence of desertion or abscondment of duty, the onus lies on the employer to demonstrate in evidence the steps it took, failing which a termination will be found.
  • An employer is mandated by sections 9, 10 and 74 of the Employment Act, 2007 to keep and maintain employment records; absence of such records weighs against the employer.

Court orders

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  1. 1.A declaration that the termination of employment of the claimant by the respondent was wrongful, unfair and unlawful
  2. 2.One month's salary in lieu of notice of Kshs.15,000.00
  3. 3.Salary for October, 2012 of Kshs.15,000.00
  4. 4.Twelve months' compensation for unlawful termination of employment of Kshs.180,000.00 (total award Kshs.210,000.00)
  5. 5.The cost of the claim to be borne by the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

majority
Jurisdiction invoked
Sections 12(1) of the Industrial Court Act, No. 20 of 2011; Employment Act, 2007; Work Injury Benefits Act, 2007

Relief refused

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Compensation for permanent disablement of Kshs.1,440,000.00 under the Work Injury Benefits Act, 2007

The court held it lacks jurisdiction to award compensation for permanent disability under WIBA, leaving the question open.

p. 4

Costs

The cost of the claim shall be borne by the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The golden rule here is that he who alleges must prove. In a scenario where the respondent seeks to rely on a defence of absconding duty, she should ably demonstrate this in evidence to a balance of probability. This is not done.
p. 4Burden of proof on employer pleading desertion
In this case, the onus lies on the employer respondent to outrightly demonstrate a case of absconding duty.
p. 4Employer's onus on abscondment defence
the law at section 9, 10 and 74 of the Employment Act, 2007 mandates an employer to keep and maintain records of employment contracts and allied details
p. 4Employer's statutory duty to keep employment records
A determination of this issue is succinct: This court lacks jurisdiction on such subject matter and determination. I leave it open.
p. 4No jurisdiction over WIBA permanent disability compensation
A declaration be and is hereby issued that the termination of employment of the claimant by the respondent was wrongful, unfair and unlawful.
p. 5Final orders - declaration of unfair termination
Twelve (12) months compensation for unlawful termination of employment Kshs.15,000.00 x 12=.……………………...Kshs.180,000.00
p. 5Final orders - twelve months' compensation awarded
The cost of the claim shall be borne by the respondent.
p. 5Final orders - costs

Issues in the judgment

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minor

The claim of Kshs.98,000.00 for leave days is stated with a total line repeating Kshs.98,000.00 instead of the overall total of the claim, and the awarded total (Kshs.210,000.00) differs from the pleaded schedule.

minor

The claimant pleads a salary of Kshs.15,000.00 while the respondent asserts a basic salary of Kshs.7,715.00 plus house allowance of Kshs.2,000.00; the judgment awards on Kshs.15,000.00 without resolving the discrepancy.

minor

The judgment's dateline is incomplete for the signing by D.K. Njagi Marete ('Dated and signed this day of 2018'), with only the delivery date by Maureen Onyango stated.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Chrispine Onguso Okinyi v Devki Steel Mills Limited [2018] KEELRC 40 (KLR)", Case Analysis (2018). Cause No. 1344 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/40/eng@2018-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.