Gichuru v Joycot General Contractors Limited (Cause E015 of 2024) [2025] KEELRC 885 (KLR)
The bottom line
#A Nyeri court awarded a surveyor Kshs.584,950 after finding his dismissal unfair, ruling employers must prove reasons and fair procedure when desertion is claimed.
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 dismissal of the claimant from employment was unfair and unlawful
- 2.Whether the claimant is entitled to the reliefs sought
- 3.Whether the Respondent is entitled to the counterclaim
Key legal issues
#Whether the dismissal of the claimant was unfair and unlawful
The dismissal was unfair within the meaning of section 45 of the Employment Act; the respondent adduced no evidence of a valid reason or fair procedure
RW1 admitted the claimant was fired but gave no evidence of valid reason or fair procedure. Under sections 41, 43 and 45 of the Employment Act, the employer bears the evidentiary burden of proving valid reason and fair procedure once the employee makes a prima facie case. The desertion allegation was unproved, with no evidence of efforts to trace or warn the claimant. The court adopted the reasoning in Postal Corporation of Kenya v Tanui, Musamali v G4S, Ekisa and Nyambu Daudi.
Whether the claimant is entitled to the reliefs sought
Entitled to one month's salary in lieu of notice, one month's compensation for unfair termination, pleaded salary arrears of Kshs.212,200, the Total Station invoice of Kshs.95,000 and pro-rata leave of Kshs.57,750; house allowance, overtime and statutory deduction claims declined
Section 49 entitled the claimant to notice pay and compensation; one month's compensation reflected his non-contribution and short service. Leave was payable pro-rata under section 28(1)(b) despite less than twelve months' service. Admitted debts (salary arrears and invoice) were awarded as pleaded. House allowance, overtime and statutory deduction claims failed for lack of particulars and proof.
Whether the Respondent is entitled to the counterclaim
Counterclaim for one month's salary in lieu of notice dismissed
Having found the claimant was unlawfully dismissed rather than having deserted employment, the basis of the counterclaim fell away and it was dismissed with costs.
Legal principles established
#- The legal burden of proving unfair termination lies with the employee, but once the employee alleges absence of valid reason or fair procedure, the evidentiary burden shifts to the employer to justify the termination
- An employer alleging desertion must show efforts made to reach out to the employee and put him on notice that termination on that ground is under consideration
Court orders
#- 1.Judgment entered for the claimant against the respondent for Kshs.584,950.00 comprising: one-month salary in lieu of notice Kshs.110,000.00; compensation for unfair termination Kshs.110,000.00; salary arrears Kshs.212,200.00; Total Station Machine Invoice Kshs.95,000.00; pro-rata leave Kshs.57,750.00
- 2.The award is subject to statutory deductions but in addition to costs and interests at court rates from the date of filing the suit
- 3.The respondent's counterclaim dismissed with costs
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 the ELRC Procedure Rules (no specific constitutional article invoked)
Relief refused
#General damages equivalent to twelve months' salary beyond one month's compensation
Claimant did not contribute to the termination and served less than one year, so only one month's salary awarded as compensation
Unpaid house allowance of Kshs.100,000
Salary was gross and inclusive of housing; claim also lacked particulars
Overtime pay of Kshs.207,016
Claim lacked particulars and supporting evidence; no agreement for payment of overtime
Unremitted statutory deductions (NHIF/NSSF) of Kshs.4,500
Lacked particulars and proof that deductions were made from the claimant's salary
Costs
Costs of the suit awarded to the claimant (award to be in addition to costs and interests at court rates from the date of filing the suit); the counterclaim dismissed with costs
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.
Consequently, I find that the respondent terminated the employment of the claimant unfairly for no valid reason and without following a fair procedure.
It is however not in enough for an employer to simply state that an employee has deserted duty.
Consequently, I enter judgment for the claimant against the respondent for payment of the following:
One-month salary in lieu of notice…………………Kshs.110,000.00
Compensation for unfair termination……………...Kshs.110,000.00
The award is subject to statutory deductions but in addition to costs and interests at court rates from the date of filing the suit since the claim is largely liquidated in nature.
In view of my finding that the claimant was unlawfully dismissed by the respondent, I find no merits in the allegation that the claimant deserted employment, and proceed to dismiss the counterclaim with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichuru v Joycot General Contractors Limited (Cause E015 of 2024) [2025] KEELRC 885 (KLR)", Case Analysis (2025). Statement of Claim dated 18th April 2024 (cause number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/885/eng@2025-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.