Wicliffe Omondi Manyala v Rotex Suppliers and Service Limited [2022] KEELRC 204 (KLR)
The bottom line
#A Kenyan employer claiming an employee deserted duty must prove they tried to trace the worker and give notice—otherwise the dismissal is unfair.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Was the Claimant dismissed from his employment or did he abscond duty?
- 2.Is the Claimant entitled to the damages/reliefs sought?
- 3.Who bears the costs?
Key legal issues
#Whether the Claimant was dismissed or absconded duty
The court found the Claimant was terminated unprocedurally rather than having absconded, as the Respondent failed to demonstrate efforts to trace him or give notice of contemplated desertion-based termination.
The court noted the absence of fundamental records - no written contract and no letter referencing desertion. Under Section 9(2) of the Employment Act the employer must keep written contracts. The authorities require an employer alleging desertion to show efforts to establish the employee's whereabouts and to give notice of intended termination. The Respondent did neither, so the evidence favoured oral, unprocedural termination.
Whether the termination was substantively and procedurally fair
The termination failed both tests - no valid and fair reason was proved and no fair procedure under Section 41 was followed.
Section 45(2) of the Employment Act renders a termination unfair if the employer fails to prove a valid and fair reason and a fair procedure. The Respondent gave no valid reason beyond alleging desertion, and did not hear the employee's representations as required by Section 41. The Respondent therefore failed on both substantive justification and procedural fairness.
Whether delayed service of summons invalidated the suit
The contention was dismissed as there was no affidavit of service or evidence of lack of leave; the court would not presume weighty issues and gave the Claimant the benefit of doubt.
The Respondent alleged summons were served one year and two months after filing, but produced no affidavit of service and no evidence that leave for delayed service was not granted. The court held it could not presume such weighty issues and resolved the point in the Claimant's favour.
Legal principles established
#- An employer alleging desertion must demonstrate efforts to establish the employee's whereabouts and give notice that termination on grounds of desertion is being considered.
- An employer has a statutory duty to reduce the contract of service to writing under Section 9(2) of the Employment Act.
- A fair termination requires both substantive justification (valid reason) and procedural fairness.
Court orders
#- 1.One month's salary of Kshs.12,000/= in lieu of notice
- 2.September 2014 salary of Kshs.12,000/= awarded
- 3.One month's salary of Kshs.12,000/= as damages (compensation) having regard to one year of service
- 4.Judgment entered for the Claimant for a total of Kshs.36,000/=
- 5.Claimant awarded costs of the suit
- 6.Interest at court rates till payment in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment cause)
Relief refused
#Underpayment of wages
No evidence or legal instruments placed before the court to establish underpayment
Payment of untaken/unpaid public holidays
No evidence to support the prayer
Service gratuity
No evidence to support gratuity and the Claimant did not prove non-remittance of NSSF dues
Costs
Costs follow the events and so I award the Claimant's costs of the suit.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I have no choice but to find the Claimant was unlawfully terminated from his employment and I enter Judgment in his favour.
There is no evidence that Claimant was paid salary in lieu of notice. He is entitled to one month salary Kshs.12,000/= in lieu of notice.
The Respondent therefore failed the mandatory requirement to give a valid reason of terminating the Claimant's employment and did also not follow the requisite procedure in the process of termination as provided in Section 41 of the Employment Act.
Costs follow the events and so I award the Claimant's costs of the suit. I also award him interest till full payment at court rates.
Issues in the judgment
#The judgment inconsistently states the date of termination of employment by the Claimant
The citation of the ESTATE TRADERS authority is garbled, conflating two case numbers
Respondent's pleadings state the Claimant re-applied for a job with an inconsistent letter date
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wicliffe Omondi Manyala v Rotex Suppliers and Service Limited [2022] KEELRC 204 (KLR)", Case Analysis (2022). ELRC Cause (Nairobi) - Claimant's memorandum of claim dated 9th June 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/204/eng@2022-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.