Oburo v Frodak Kenya Limited (Appeal E025 of 2024) [2025] KEELRC 2353 (KLR)
The bottom line
#A Kenyan court confirmed that an employee who stays away from work without explanation can be lawfully dismissed, provided the employer follows proper procedure.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether termination of the appellant's employment by the respondent was unfair or he absconded duty
- 2.whether the appellant is entitled to the reliefs sought
Key legal issues
#Whether the appellant absconded/deserted duty
The appellant admitted on oath that after failing to find the director he stayed home until he received the termination letter; the court agreed with the trial court that he deserted the workplace, which constituted the substantive justification for dismissal.
The appellant last worked on 16th May 2017 and stayed home without explaining why, did not deny receiving calls and messages from the director, and could have contacted the directors directly rather than relying on an unnamed junior supervisor. His account of being required at the office was found unconvincing. Desertion, meaning wilful and unjustified abandonment of duty, was thereby substantively established.
Whether the respondent complied with Section 41 of the Employment Act (procedure)
The respondent discharged the burden of proving a fair procedure by posting a notice to show cause, an invitation to a disciplinary hearing and the decision to the appellant's last known postal address with certificates of postage, and by texting him to resume duty.
All four letters bore the same postal address the respondent testified was provided by the appellant, and all but one bore certificates of postage. The appellant received the dismissal letter at that address, undermining his claim the address was wrong. The elements of Section 41 set out in Postal Corporation of Kenya v Andrew K. Tanui were satisfied; the appellant declined to participate in the process he was accorded.
Burden of proof under Section 47(5) of the Employment Act
The appellant failed to prove that his termination was unlawful or unfair since he was not declared redundant, as pleaded.
Under Section 47(5), the employee must demonstrate a prima facie case that employment was terminated and that the termination was unfair or unlawful. The appellant's pleaded case of redundancy was abandoned in cross-examination, and he could not change the story without amending the claim. The trial court's finding that he failed to prove unfair termination was upheld.
Entitlement to leave days
The appellant was awarded leave pay for 63 days, Kshs.50,400, because RWI admitted the claimant never went on leave, even though he had no schedule of leave days.
Although the appellant admitted he had no schedule of leave days and his witness statement lacked particulars, the respondent's witness admitted on cross-examination that the claimant never went on leave. This admission justified the award of leave pay for 63 days despite the failure of proof on the appellant's side.
Legal principles established
#- Where an employer pleads that the employee absconded duty, the employer must prove the desertion by adducing evidence of the reasonable steps it took to have the employee resume duty and/or be aware that termination on account of desertion was being considered
- Even where an employee has absconded, the employer must still accord a fair disciplinary process under Section 41 of the Employment Act before termination
- Termination must pass both the substantive and procedural fairness test under Section 45 of the Employment Act
- Parties are bound by their pleadings and cannot change the story in court without amending the claim
Court orders
#- 1.The appellant is awarded leave pay for 63 days, Kshs.50,400.00
- 2.The claim for salary in lieu of notice, 12 months' salary compensation, severance pay, unpaid holidays and the declaration sought are declined
- 3.The appellant is entitled to a certificate of service by dint of Section 51 of the Employment Act
- 4.Each party shall bear own costs of the appeal
- 5.Other awards made by the trial court are upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Kisumu (MCELRC)
- Kisumu MCELRC No. 4 of 2019
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over appeals from the magistrates' courts (Appeal against the Judgment delivered by Hon. Nyigei PM in Kisumu MCELRC No. 4 of 2019)
Relief refused
#Salary in lieu of notice and 12 months' salary compensation
Having found the dismissal was substantively justified and procedurally fair, the claims were unsustainable
Severance pay for 3 years
The appellant admitted on cross-examination that he was not declared redundant
Unpaid holidays
The claim lacked particulars and RWI confirmed they did not work on public holidays
Declaration that termination on account of redundancy was unfair, malicious, discriminatory and unlawful
The appellant admitted he was not terminated on account of redundancy
Costs
Each party shall bear own costs of the appeal.
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.
the court is satisfied that the respondent acted reasonably and cannot be faulted for having summarily dismissed the appellant in the manner it did it.
where an employer pleads that the employee absconded duty, the employer is then required to prove the desertion by adducing evidence to prove the reasonable steps it took to have the employee resume duty and/or be aware that termination of his or her employment on account of the desertion was being considered
It is trite law that parties are bound by their pleadings. The appellant could not change the story in court without amending his claim.
Other than the claim for leave days for which the appellant is awarded Kshs.50,400.00 the appeal is unsuccessful and as a consequence, each party shall bear own costs of the appeal.
For the avoidance of doubt other awards made by the trial court are upheld.
Issues in the judgment
#The citation for Judith Atieno Owuor V Sameer Agriculture and Livestock Ltd is incomplete in the judgment, printed as '[202] eKLR' with a missing digit in the year
The judgment states the appellant's employment was terminated on 26th July, 2017 while the opening narration of the claim refers to termination on 26th May, 2017
The document bears a 'DRAFT JUDGMENT' footer notwithstanding that it is dated, signed and delivered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oburo v Frodak Kenya Limited (Appeal E025 of 2024) [2025] KEELRC 2353 (KLR)", Case Analysis (2025). Kisumu ELRC Appeal No. E025 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2353/eng@2025-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.