Icom Engineering Co. Limited v Juma (Appeal 136 of 2022) [2025] KEELRC 516 (KLR)
The bottom line
#Kenya's Employment Court confirmed that firing a worker for 'absconding' without a show cause letter or hearing is unfair termination, and the employer pays.
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 trial court erred by finding that Respondent's termination of employment was unfair and unlawful
- 2.Whether the trial learned Magistrate erred in awarding the Respondent his terminal dues
Key legal issues
#Whether the termination of the Respondent's employment was substantively and procedurally unfair
Yes. The Appellant failed to prove on a balance of probabilities that the Respondent absconded/deserted duty, and no show cause letter or disciplinary hearing was issued, violating section 41 of the Employment Act.
The Appellant alleged the Respondent absconded for two months, yet the Respondent stated he was terminated for objecting to a salary deduction of Kshs 1,500/=. Absconding constitutes gross misconduct under section 44(4)(a), but the employer must demonstrate intention not to return and must follow section 41 procedure, including a show cause letter and disciplinary hearing. No such steps were taken, so the termination was both substantively and procedurally unfair.
Whether the trial court erred in the awards of terminal dues (notice pay, compensation, overtime, leave, housing allowance, service pay)
No. All awards were upheld; the compensation award of four months' salary was within the trial court's discretion, and the other awards were justified on the evidence.
The court would only disturb the awards if the trial court misdirected itself. Four months' compensation was reasonable under section 49(4); notice pay was justified under section 35; the Appellant produced no evidence that salary was consolidated to defeat the housing allowance claim under section 31; no attendance schedules or leave forms were produced; and NSSF/NHIF non-remittance entitled the Respondent to service pay.
Whether the claims for leave, housing allowance and overtime were statute barred
No. These are continuing injuries under section 90 of the Employment Act, and the suit was filed within 12 months of cessation of employment.
Employment ended in September 2020 and the claim was filed in October 2020, within the 12-month period required by the proviso to section 90. Relying on G4S Security and The German School Society, the court held that claims based on a continuing wrong are not time barred where the breach creates a continuing source of injury.
Legal principles established
#- Unpaid leave, housing allowance and overtime claims are continuing injuries which must be filed within 12 months after cessation of employment under section 90 of the Employment Act.
- Dismissal on account of absconding must be preceded by reasonable attempts to contact the employee and issuance of a show cause letter, and procedural fairness under section 41 is mandatory.
- An appellate court will not interfere with the discretionary awards of the trial court unless satisfied the trial court misdirected itself and arrived at a wrong decision.
Court orders
#- 1.The Appeal is found unmerited and is hereby dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (trial court)
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court against the judgment of the Principal Magistrate
Relief refused
#Allowance of the appeal and setting aside of the trial court judgment
The court found no misdirection by the trial magistrate; the termination was substantively and procedurally unfair and the awards were justified.
Costs
Appeal dismissed with costs (costs to the Respondent).
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.
In the upshot the Appeal is found unmerited and is hereby dismissed with costs.
In conclusion this court agrees with the trial court decision that the Respondent's termination was both substantively and procedurally unfair and unjustified.
Section 41 of the Employment Act is couched in mandatory terms. Where an employer fails to follow these mandatory provisions, whatever outcome of the process is bound to be unfair
From the above decisions it is clear those reliefs fall under continuing injury which were filed within 12 months.
On the issue of housing allowance, the Appellant did not produce any evidence that the Respondent's salary was consolidated. This is a requirement under section 31 of the Employment Act hence the court upholds the award by the trial Court.
On the issue of service pay the court agrees with the trial court findings that the Appellant did not illustrate that it remitted the NSSF and NHIF dues for the Respondent hence he was entitled to the same.
Issues in the judgment
#The second issue as framed contains garbled/typographical text in the judgment.
The court's chronological account of employment dates is internally inconsistent: it states employment ran from August 2014 to September 2020, while the appellant's submissions claim the Respondent worked only from 2019, and the trial court's termination date appears in submissions as 26th November 2016.
The names of the parties and the case number of the appeal are not stated anywhere in the judgment text provided.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Icom Engineering Co. Limited v Juma (Appeal 136 of 2022) [2025] KEELRC 516 (KLR)", Case Analysis (2025). Not stated in the judgment provided (Memorandum of Appeal dated July 13, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/516/eng@2025-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.