Njanjo v Jomat Construction Limited (Cause 1514 of 2018) [2024] KEELRC 2171 (KLR)
The bottom line
#A Kenyan employer who fires a worker for 'desertion' without proof or a disciplinary hearing must pay maximum compensation — here, Kshs 780,000.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the Claimant's contract was terminated lawfully and fairly, or at all, by the Respondent
- 2.whether the Claimant merits the prayers sought
- 3.whether the Respondent has established its Counterclaim
Key legal issues
#Whether the Claimant deserted his employment
Desertion not proved; the Claimant was shown representing the Respondent at a tender opening in Nyandarua in early 2016
The Respondent adduced no evidence of desertion on 8th October 2015 or thereafter. The Claimant's role as foreman carried flexibility of attendance and custody of equipment, making abandonment implausible. He participated in a tender opening months after the alleged desertion date, undermining the Respondent's assertion.
Whether termination followed fair procedure
Procedurally unfair under Sections 41 and 45; no disciplinary hearing was convened though the Respondent could reach the Claimant
Internal memos warning about absenteeism were personally delivered, showing the Respondent could communicate directly with the Claimant. Yet the termination letter was posted to Kiptangwanyi without explanation, and no disciplinary hearing preceded termination as Section 41 requires.
Whether the Counterclaim for return of tools and equipment was established
Counterclaim declined; Respondent gave no evidence
The Respondent closed its case without calling evidence after its witness died. The Court rejected the suggestion that one witness's death paralysed a limited liability company. Consequently the unchallenged evidence of the Claimant stood, and the Counterclaim failed for want of proof.
Appropriate remedies
Notice pay of Kshs 60,000 and maximum 12 months' compensation of Kshs 720,000; reinstatement, gratuity, leave allowance, days worked and 19 months' salary refused
Reinstatement was time-barred and impracticable. Compensation at the maximum was merited given no contributory fault, no rebutting evidence, and over ten years of service. Other heads lacked evidential or contractual foundation, including the 19 months' arrears claim.
Legal principles established
#- An employer asserting desertion bears the evidential burden of proving it; termination without valid reasons breaches Sections 43 and 45 of the Employment Act
- Where an employer can reach an employee to issue warnings, a disciplinary hearing must be convened before termination; failure breaches Section 41 and renders termination procedurally unfair
- Maximum compensation under Section 49 is justified where the employee did not contribute to termination, the employer leads no evidence, and the employee has long service
Court orders
#- 1.The Counterclaim is declined
- 2.It is declared that termination of the Claimant's contract was initiated by the Respondent and was unfair and unlawful
- 3.The Respondent shall pay to the Claimant notice at Kshs 60,000 and equivalent of 12 months' salary in compensation for unfair termination at Kshs 720,000, total Kshs 780,000
- 4.Costs to the Claimant
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 and Labour Relations Act (original jurisdiction over employment dispute)
Relief refused
#Reinstatement
Not legally permissible, termination having taken place in 2016; neither reasonable nor practicable
Gratuity, annual leave traveling allowance, and pay for days worked
No contractual clause or legal provision cited; days worked not specified
Salary arrears for 19 months (Kshs 1,140,000)
Claimant did not specify which months' salary went unpaid; conduct inconsistent with an employee owed 19 months' salary
Costs
Costs to the Claimant.
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.
It is declared that termination of the Claimant's contract was initiated by the Respondent and was unfair and unlawful.
The Respondent shall pay to the Claimant: notice at Kshs 60,000; and equivalent of 12 months’ salary in compensation for unfair termination at Kshs 720,000 – total Kshs 780,000.
There is therefore no evidence that the Claimant deserted. Termination was instigated by the Respondent. It was not based on valid reasons, under Sections 43 and 45 of the Employment Act.
Procedure was not in conformity with Sections 41 and 45 of the Employment Act.
The Counterclaim is declined.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njanjo v Jomat Construction Limited (Cause 1514 of 2018) [2024] KEELRC 2171 (KLR)", Case Analysis (2024). Cause No. 1034 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2171/eng@2024-08-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.