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ELRCPartially AllowedNot stated on the face of the judgment (appeal from Mombasa CMELRC No. E491 of 2022)

Onago v Ufanisi Freighters (K) Limited (Appeal E212 of 2024) [2025] KEELRC 993 (KLR)

Employment and Labour Relations Court
27 March 2025
1,505 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan truck driver who stopped reporting for duty lost most of his claims, winning only pay for 14 public holidays worked.

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 Mombasa against the judgment of the learned magistrate delivered on 12 September 2024 in Mombasa CMELRC No. E491 of 2022, dismissing a driver's claims for notice pay, 12 months' compensation, underpayments, public holidays, unpaid leave, Sundays worked and overtime following alleged termination on 21 July 2022. The appellant argued constructive dismissal, contending he was locked out by a notice pinned at the gate without a fair hearing. The respondent maintained the appellant was on leave, deserted duty, declined to resume work, filed a premature suit and remained absent until 25 August 2022, with a consolidated wage inclusive of house allowance and no authorised overtime. The court, exercising its first appellate jurisdiction, held the appellant's case was not constructive dismissal; that failure to report to work amounted to gross misconduct under section 44 of the Employment Act, though the employer must summon the employee and end the relationship by notice; that no underpayment arose because the consolidated wage was lawful under section 31 and the appellant was contracted as a truck driver rather than a heavy commercial driver, with continuing-injury claims limited to 12 months under section 89; and that the Sunday and overtime claims failed as uncontradistinguished and unapproved. However, the respondent did not challenge the claim for 14 public holidays worked, entitling the appellant to Ksh.15,653.85. The appeal was allowed only to that extent, with each party bearing its own costs. Judgment was delivered in open court at Mombasa on 27 March 2025 by M. Mbarũ, Judge.

Questions the Court framed

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

  1. 1.Whether the termination of the appellant's employment amounted to constructive dismissal or desertion
  2. 2.Whether the trial court erred in dismissing the claims for notice pay and 12 months' compensation
  3. 3.Whether the appellant was underpaid as a heavy commercial driver given a consolidated wage
  4. 4.Whether the appellant was entitled to compensation for work during public holidays, Sundays and overtime
  5. 5.Whether the claim for underpayments was time-barred under section 89 of the Employment Act

Key legal issues

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01

Constructive dismissal

Holding

The appellant's case was not constructive dismissal; finding a notice pinned at the gate and responding with a demand notice indicating he had other duties does not establish constructive dismissal

Reasoning

The alleged notice pinned at the gate was never filed in evidence. The appellant's own letter of 22 July 2022 sought confirmation of termination and gave an ultimatum while indicating he had other duties and needed to look for another job. The court held this conduct inconsistent with constructive dismissal as defined in the cited authority, and that the magistrate correctly applied the law in dismissing the notice pay and compensation claims.

p. 3
02

Desertion and gross misconduct under section 44 of the Employment Act

Holding

The appellant deserted duty; failure to report to work, even where the employer has reported the matter to the labour office, is gross misconduct, and the employer must end the relationship by notice

Reasoning

The respondent's case was that the appellant was allowed leave and declined to resume duty; he filed suit and remained absent until 25 August 2022. Under section 44 such absence is gross misconduct. However, the employer must first summon the employee to address the matter before issuing a notice terminating employment. The court nonetheless found the magistrate correctly dismissed these claims.

p. 3
03

Underpayment claims and limitation

Holding

No underpayment; the wage was consolidated inclusive of house allowance, and underpayments as continuing injuries are limited to 12 months

Reasoning

Each fixed-term contract created a distinct relationship. The wage of Ksh.33,544 was consolidated under section 31 of the Employment Act. Further, the appellant's contract described him as a truck driver, not a heavy commercial driver, so the higher wage order rate did not apply. Any continuing-injury claim could only reach back 12 months, rendering earlier claims time-barred.

p. 3
04

Public holidays, Sundays and overtime

Holding

The appellant was entitled to Ksh.15,653.85 for 14 unchallenged public holidays; the Sunday and overtime claims failed

Reasoning

The respondent did not challenge the claim for 14 public holidays worked under the last contract, so compensation was awarded. The rest day under section 27 need not be Sunday and the appellant did not contradistinguish that claim. Overtime must be approved where hours are agreed; mechanical problems with the truck did not amount to authorised overtime and the claims were exaggerated.

p. 4

Legal principles established

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  • Failure to report to work as required is gross misconduct under section 44 of the Employment Act; the employee must be summoned and, on failure, the employer may end the employment by notice
  • Claims for a continuing injury under section 89 of the Employment Act can only go back 12 months from cessation
  • A consolidated wage inclusive of house allowance is permitted under section 31 of the Employment Act
  • Overtime must be approved where hours of work are agreed under a fixed-term contract

Court orders

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  1. 1.Appeal allowed only to the extent of an award of Ksh.15,653.85 for work during 14 public holidays
  2. 2.Each party to bear its own 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
Magistrates' Court (ELRC), Mombasa
Mombasa CMELRC No. E491 of 2022
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's decision in Mombasa CMELRC No. E491 of 2022

Relief refused

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Setting aside of the trial judgment in respect of notice pay, 12 months' compensation, underpayments, Sundays worked and overtime

The appellant deserted duty and cannot claim constructive dismissal; no underpayment arose from the consolidated wage; overtime was not authorised and the claims were exaggerated

p. 4

Claim for Sundays worked

The rest day need not be Sunday and the appellant did not contradistinguish this claim

p. 4

Costs

Each party bears its own 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.

Accordingly, the appeal is without merit save for the award of work during public holidays at Ksh.15, 653.85. Each party bears its costs.
p. 4Final orders and disposition
Failure to report to work as required, even where the employer has reported the matter to the labour ofice, is an act of gross misconduct under Section 44 of the Employment Act.
p. 3Gross misconduct - desertion
The case, as stated by the appellant, is not a constructive dismissal.
p. 3Constructive dismissal
Under the application of section 89 of the Employment Act, claims for underpayments, if due to a continuing injury, can only go back to 12 months
p. 3Limitation - continuing injury
Where work hours are agreed upon, any overtime work must be approved.
p. 4Overtime
A consolidated wage is allowed under Section 31 of the Employment Act, where the house allowance due is inclusive.
p. 3Consolidated wage

Issues in the judgment

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minor

The case number of the present appeal is not stated anywhere in the judgment; only the trial case number (Mombasa CMELRC No. E491 of 2022) appears.

minor

The name of the trial magistrate whose judgment is under appeal is not given.

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, "Onago v Ufanisi Freighters (K) Limited (Appeal E212 of 2024) [2025] KEELRC 993 (KLR)", Case Analysis (2025). Not stated on the face of the judgment (appeal from Mombasa CMELRC No. E491 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/993/eng@2025-03-27

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