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Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Appeal from CMEL No. 38 of 2019

Golden Biscuits (1985) Limited v Otieno (Appeal E228 of 2022) [2024] KEELRC 1222 (KLR)

Employment and Labour Relations Court
21 May 2024
2,651 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled an employee who abandons his job loses salary claims, and courts cannot award money a worker never asked for.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Nairobi against the judgment of Hon. E. Kagoni, Principal Magistrate, in CMEL No. 38 of 2019 delivered on 5th December 2022, in which the Claimant (Respondent here) was awarded salary of Kshs. 717,060/- for the period 1st September 2018 to 30th November 2022 on the basis that he remained an employee, with a referral to mediation and no order as to costs. The Appellant employer contended that the trial court determined un-pleaded issues and granted unclaimed reliefs, and that the Magistrate contradicted himself by finding desertion yet holding that employment subsisted. The Respondent maintained he was unfairly terminated on 1st September 2018 after being accused of theft, and that the employer failed to prove desertion. Applying the Selle v Associated Motor Boat Company principles, Nzioki Wa Makau J re-evaluated the evidence and held that under section 44(4)(a) of the Employment Act, absence without leave or lawful cause amounts to gross misconduct justifying summary dismissal, so no employment relationship subsisted. The court further held that the Claimant never pleaded or sought the salary award granted, and the trial Magistrate himself found no entitlement to compensation, leave or notice, so the only available remedy was dismissal of the suit. The appeal was allowed; the judgment, decree and mediation reference were vacated and the entire suit dismissed, with no order as to costs.

Questions the Court framed

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

  1. 1.Whether the trial Magistrate erred in decreeing that the Respondent was still in the employment of the Appellant when the matter was never pleaded
  2. 2.Whether the trial Magistrate erred in granting reliefs that had not been sought
  3. 3.Whether the Respondent was terminated or deserted employment, and if terminated, whether such termination was unfair

Key legal issues

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01

Whether a trial court may determine un-pleaded issues or grant unclaimed reliefs

Holding

No. The trial Magistrate erred in law in finding the Claimant was still an employee and awarding salaries from 2018 to 2022 when that relief was never pleaded or sought. The only remedy available was to dismiss the suit.

Reasoning

The pleadings framed the dispute as whether the Claimant's employment was unlawfully terminated, and the reliefs sought were notice pay, damages and leave. The award of accumulated salary rested on a finding of continued employment that no party pleaded or prayed for. On a first appeal the court re-evaluated the evidence and found the finding was against the weight of evidence, warranting substitution with a dismissal of the suit.

p. 5
02

Whether an employee who absents himself from work without lawful cause remains entitled to salary

Holding

No. Absence from the workplace without leave or lawful cause amounts to gross misconduct justifying summary dismissal under section 44(4)(a) of the Employment Act, and no employment relationship subsisted to found an award of salary or mediation.

Reasoning

The trial court itself found the Claimant failed to attend the disciplinary meeting and was deemed to have deserted his employment. Under section 44(4)(a), absence without leave or other lawful cause constitutes gross misconduct justifying summary dismissal. The court therefore found lawful cause for dismissal and no subsisting employment relationship, negating both the salary award and the referral to mediation.

p. 5

Legal principles established

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  • A court cannot grant a remedy that was not pleaded or sought by a party
  • On a first appeal, the court must re-evaluate the evidence and draw its own conclusions while making allowance for not having seen or heard the witnesses

Court orders

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  1. 1.Judgment and Decree of the Learned Trial Magistrate vacated and substituted with a Judgment dismissing the entire suit CMEL No. 38 of 2019 – Julius Ochieng Otieno v Golden Biscuits [1985] Limited with no order as to costs
  2. 2.The reference to mediation vacated
  3. 3.Appeal allowed with no order as to costs

The bench

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

majority

Wrote the judgment

On appeal from
Principal Magistrate's Court
CMEL No. 38 of 2019 (Julius Ochieng Otieno v Golden Biscuits [1985] Limited)
Jurisdiction invoked
First appeal under the Employment and Labour Relations Court's appellate jurisdiction from the trial Magistrate's Court

Relief refused

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Salary from 1st September 2018 to date of judgment (Kshs. 717,060/-) and reference to mediation

The relief was neither pleaded nor sought by the Claimant, and no employment relationship subsisted

p. 5

Costs

No order as to costs; the appeal was allowed with no order as to costs.

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.

There was no basis to award what was not proved or pleaded and the only recourse is to vacate the Judgment of the Learned Trial Magistrate and substitute the Judgment and Decree issued in the case with a Judgment dismissing the entire suit No. CMEL No. 38 of 2019
p. 5un-pleaded reliefs
The appeal is allowed albeit with no order as to costs. It is so ordered.
p. 5disposition
this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind it has neither seen nor heard the witnesses
p. 4duty of first appellate court

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, "Golden Biscuits (1985) Limited v Otieno (Appeal E228 of 2022) [2024] KEELRC 1222 (KLR)", Case Analysis (2024). ELRC Appeal from CMEL No. 38 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1222/eng@2024-05-21

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