Mohamed v Balali (Appeal E106 of 2024) [2025] KEELRC 758 (KLR)
The bottom line
#A Kenyan court confirmed that employers cannot simply treat absent employees as having quit—desertion claims require proof they tried to contact the worker.
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 respondent deserted duty or was unfairly terminated by summary dismissal
- 2.Whether the award of service pay for 13 years was justified
- 3.Whether house allowances were payable despite a consolidated wage
- 4.Whether the award for unpaid leave for 13 years was justified
- 5.Whether the awards for days worked and the costs order by the trial court were justified
Key legal issues
#Whether the respondent deserted duty or was unfairly terminated
The trial court's finding of unfair termination by summary dismissal was upheld; the appellant did not apply the statutory safeguards.
Desertion is gross misconduct but does not itself terminate employment. The employer must bring the employee to account under Sections 44 and 41 of the Employment Act. The appellant's witness admitted having no evidence of the destroyed water pump and no phone records of attempts to reach the respondent. Where an employee cannot be traced, Section 18(4) requires service of the notice on the Labour Office. No such steps were taken, so termination was unlawful and unfair.
Whether house allowances were payable despite a consolidated wage
Partially allowed; the award was reduced to 12 months' underpayment of Ksh.17,782.77.
A consolidated wage is lawful but must not fall below the minimum wage under the Wage Orders. The house allowance due at 15% of the minimum wage for a day security guard was Ksh.2,280.75, producing an underpayment of Ksh.1,481.75 per month. However, house allowance non-payment is a continuing injury under Section 89, so only the 12 months preceding cessation (October 2021 to October 2022) were claimable.
Whether leave pay for 13 years was justified
No; leave was limited to 18 months under Section 28(4) of the Employment Act.
The learned magistrate had awarded leave for 3 years, but the statutory limit under Section 28(4) confines accumulated leave to 18 months. The court assessed 33 days on the basic wage of Ksh.15,201.65, arriving at Ksh.16,721.85 (entered as Ksh.17,782.77 in the final orders).
Service pay for 13 years
Awarded, but recalculated at the gross wage of Ksh.17,481.90 for 12 years at 15 days per year, Ksh.104,891.40.
The employer filed no record of remittance of statutory dues as required by Section 20 of the Employment Act, so service pay under Sections 35(5) and (6) was due. The court recalculated based on the gross wage from December 2009 to December 2021, being 12 years.
Costs of the appeal and trial
Each party to bear its own costs; the trial court's award of costs was not justified.
Under Section 12(4) of the Employment Act an award of costs must be justified. The trial court gave no justification for awarding costs and interests, so the court exercised its discretion judicially and directed that each party bear its own costs for both the appeal and the trial court.
Legal principles established
#- An employer alleging desertion must bring the employee to account under Sections 44 and 41 of the Employment Act, including service of notice of summary dismissal; where the employee cannot be traced, notice may be served on the Labour Office under Section 18(4).
- Non-payment of a house allowance is a continuing injury under Section 89 of the Employment Act, claimable only for 12 months from cessation of the breach.
- A consolidated wage is permissible under Section 31 of the Employment Act but must not fall below the statutory minimum under the applicable Wage Order.
- An employer must produce records of remittance of statutory dues when service pay is claimed.
- A certificate of service is due at the end of employment regardless of the reason for termination.
Court orders
#- 1.Declaration that employment was terminated unlawfully and unfairly
- 2.Compensation of Ksh.144,000 upheld
- 3.Notice pay of Ksh.16,000 upheld
- 4.House allowances of Ksh.17,782.77 (substituting Ksh.362,400)
- 5.Leave pay of Ksh.17,782.77 (substituting Ksh.33,579)
- 6.Service pay of Ksh.104,891.40
- 7.Certificate of service
- 8.Each party bears its costs for the appeal and the trial court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Mombasa Magistrates' Court (CMERLC)
- E620 of 2022
- Jurisdiction invoked
- Appeal from the magistrate's court in an employment dispute pursuant to the Employment Act and the Employment and Labour Relations Court Act (provision not expressly cited in the judgment)
Relief refused
#House allowance for 151 months (Ksh.362,400 awarded by trial court)
House allowance is a continuing injury claimable only for 12 months before cessation under Section 89 of the Employment Act
Leave pay for 13 years (trial court awarded 3 years)
Leave should be assessed under Section 28(4) of the Employment Act for 18 months only
Unremitted NHIF dues
NHIF dues are not payable to the employee
Trial court's order on costs and interests
The award of costs was not justified as required under Section 12(4) of the Employment Act
Costs
Each party bears its costs for the appeal and trial court.
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.
Desertion or abandonment of duty is an act of gross misconduct. However, the employee does not terminate his employment.
An employer who alleges that the employee has deserted duty must demonstrate that efiorts have been made to reach out to the employee.
The law provides that the time limit of filing claims of continuing injury or damage should be within 12 months after cessation of the continuing wrong.
A certificate of service is due at the end of employment, regardless of the reasons for the end of the employment relationship.
Accordingly, the judgment in Mombasa CMELRC is hereby reviewed in the following terms;
Each party bears its costs for the appeal and trial court.
Issues in the judgment
#Arithmetic inconsistency in house allowance: monthly underpayment stated as Ksh.1,481.75, but 12 months stated as Ksh.17,782.77 (which does not correspond to the stated monthly figure)
Leave pay figure in the final orders does not match the computed figure in the body of the judgment (Ksh.16,721.85 computed vs Ksh.17,782.77 ordered)
The judgment states the judgment is 'reviewed' although the matter is an appeal, and the leave pay figure duplicates the house allowance figure in the final orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed v Balali (Appeal E106 of 2024) [2025] KEELRC 758 (KLR)", Case Analysis (2025). Employment and Labour Relations Court Appeal arising from Mombasa CMERLC No. E620 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/758/eng@2025-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.