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ELRCPartially AllowedNot stated in judgment

Atuga v Siafee Chemicals Limited (Cause 510 of 2018) [2025] KEELRC 2200 (KLR)

Employment and Labour Relations Court
24 July 2025
1,925 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employer couldn't prove an employee deserted his job and was ordered to pay him over Kshs. 332,000 plus costs.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 2014 as a Machine Operator and Filler Maker, sued for unlawful termination and damages for an occupational eye injury allegedly caused by exposure to corrosive chemicals without adequate protective gear. He claimed he was verbally dismissed on 19th December 2017 without reason or hearing; the Respondent denied the dismissal, asserting he absconded duty, and blamed him for contributory negligence. On 2nd April 2025 the parties recorded a consent apportioning liability for the injury at 25% (Claimant) and 75% (Respondent). The court framed three issues: unlawful termination, the impact of the occupational disease, and remedies. On termination, applying the Seabolo distinction between desertion and absence without leave, and the requirement in Felistas Acheha Ikatwa that an employer alleging desertion demonstrate efforts to reach the employee, the court found no such evidence; the desertion defence crumbled and termination was held unlawful and unfair. The court awarded six months' salary as compensation, considering length of service, non-contribution and denial of a hearing, plus one month's notice pay. On the injury, relying on the consent, the court proceeded to quantum only, adopting the comparable award in P.J. Dave Flowers and awarding Kshs. 200,000 general damages, adjusted for inflation and the agreed apportionment, on medical evidence of chemical conjunctivitis with 16% permanent disability. Special damages of Kshs. 9,580 (receipted) and admitted service pay of Kshs. 35,000 were allowed. Judgment totalled Kshs. 332,080 with interest from the date of judgment, a certificate of service and costs to the Claimant.

Questions the Court framed

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

  1. 1.Whether the Claimant has proved a case of unlawful termination of employment
  2. 2.The impact of occupational disease on the Claimant
  3. 3.Whether the Claimant is entitled to the remedies sought

Key legal issues

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01

Whether termination on the ground of desertion was proved

Holding

The desertion defence failed because the Respondent adduced no evidence of efforts to reach the Claimant; termination was therefore unlawful and unfair

Reasoning

The court adopted the Seabolo distinction between desertion and absence without leave and the rule that an employer must demonstrate efforts to have the employee resume duty and issue notice of contemplated termination. With no evidence of such effort, the defence crumbled and the Claimant's uncontroverted account of termination after falling ill at work stood.

p. 4
02

Compensation for unlawful termination

Holding

Six months' salary awarded, considering length of service, non-contribution, and denial of a hearing

Reasoning

The court exercised its discretion under settled ELRC practice, taking into account the Claimant's length of service, his lack of contribution to the termination, and the Respondent's failure to avail him an opportunity to be heard before termination, and awarded the equivalent of six months' gross salary.

p. 4
03

Quantum for occupational eye injury

Holding

Kshs. 200,000 general damages awarded, applying comparable eye-injury awards adjusted for inflation and the agreed 25% contributory negligence

Reasoning

Guided by Kigaragari v Aya on consistency of awards, the court found the injuries similar to those in P.J. Dave Flowers (Kshs. 180,000 for eye injury with photophobia). It factored in inflation and the consent apportionment of 25% contributory negligence against the Claimant to arrive at Kshs. 200,000.

p. 5
04

Effect of the consent on liability apportionment

Holding

The consent settling liability at 25% (Claimant) and 75% (Respondent) removed the need to determine liability; the court proceeded to quantum

Reasoning

By the consent recorded on 2nd April 2025, the parties agreed apportionment of liability for the work injury. The court accordingly sidestepped the liability question and determined only quantum, taking the agreed apportionment into account.

p. 4

Legal principles established

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  • An employer alleging desertion must demonstrate efforts to reach the employee and put them on notice that termination on account of desertion is contemplated
  • Desertion is distinguishable from absence without leave by the intention not to return

Court orders

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  1. 1.Six months' salary in compensation for unlawful termination of Kshs. 105,000
  2. 2.One month's salary in lieu of notice of Kshs. 17,500
  3. 3.General damages of Kshs. 200,000 for the occupational eye injury, subject to 25% contributory negligence apportionment
  4. 4.Special damages of Kshs. 9,580
  5. 5.Interest at court rates from the date of judgment until payment in full
  6. 6.Certificate of service to be issued to the Claimant
  7. 7.Costs of the case to the Claimant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

Relief refused

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Claimed general damages of Kshs. 400,000 for the injury

The court instead applied comparable awards in P.J. Dave Flowers, adjusted for inflation and the agreed 25% contributory negligence

p. 5

Costs

The Claimant is entitled to costs of the case

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.

Not every unauthorised absence from work translates to desertion of duty.
p. 4Desertion vs absence without leave
The defence that the Claimant himself deserted duty therefore crumbles.
p. 4Failure to prove desertion
Finally, I enter judgment in favour of the Claimant as follows:
p. 5Final orders
a. 6 months' salary in compensation………………………..Kshs. 105,000
p. 5Final orders - compensation
This amount will attract interest at court rates from the date of judgment until payment in full.
p. 5Final orders - interest
The Claimant is also entitled to a certificate of service plus costs of the case.
p. 6Final orders - certificate of service and costs

Issues in the judgment

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minor

Recurrent typographical error rendering 'efforts', 'affected' and 'suffered' as 'efiorts', 'afiected' and 'sufiered' throughout the text

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, "Atuga v Siafee Chemicals Limited (Cause 510 of 2018) [2025] KEELRC 2200 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2200/eng@2025-07-24

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