Greatlaes Trans (K) Limited v Robert Mackoy Limited (Appeal E081 of 2025) [2025] KEELRC 2663 (KLR)
The bottom line
#Kenyan employers must still follow due process and issue a termination notice even when an employee deserts, and cannot pay below the legal minimum wage.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.When employment of the respondent commenced (7 January 2019 or 6 April 2020)
- 2.Whether the negotiated consolidated wage fell below the statutory minimum wage and house allowance, giving rise to underpayment
- 3.Whether termination/desertion was handled in accordance with due process under Sections 41 and 44 of the Employment Act
- 4.Whether the award of house allowance and underpayment amounted to double payment
- 5.Whether the Ksh. 60,000 consented deduction should be offset against the unlawful deductions award
- 6.Whether the 3 months' compensation and the rates applied were justified under section 49(2) of the Employment Act
Key legal issues
#Date of commencement of employment
Employment commenced on 6 April 2020 per the written contract, not 7 January 2019 as the respondent claimed.
The employer is the custodian of work records. A written employment contract dated 6 April 2020 existed, and the respondent was confirmed as heavy commercial truck driver at Ksh. 25,000 per month. The court therefore rejected the respondent's earlier start date.
Minimum wage and house allowance / underpayment
The negotiated wage of Ksh. 25,000 fell below the prescribed minimum wage plus 15% house allowance; underpayment inclusive of house allowance computed at Ksh. 194,893.40, not to be awarded separately.
Employment terms cannot fall below the Wage Order thresholds. As a heavy commercial truck driver, the respondent was entitled to minimum wage of Ksh. 30,627.45 plus 15% house allowance from April 2020, and higher rates from May 2022. Awarding house allowance separately from underpayment would double-count.
Unfair termination / desertion
Termination was unfair; issuance of a notice to show cause without closure or a notice of termination does not suffice where an employee allegedly deserts.
The employer issued a notice to show cause and scheduled a disciplinary hearing the respondent did not attend, but took no further step. Desertion is gross misconduct under section 44(4)(a), but the employer must still accord due process under sections 41 and 44 and issue a termination notice to bring closure.
Compensation quantum and notice pay
3 months' compensation and notice pay recalculated on the last gross wage of Ksh. 39,448.15 per section 49(2).
The magistrate's award of 3 months' compensation was justified in length given two years of service, but the rate applied was wrong; section 49(2) requires the last gross wage, which includes house allowance, hence Ksh. 39,448.15 × 3 = Ksh. 118,344.45 and the same figure for notice pay.
Unlawful salary deductions
The consented Ksh. 60,000 deduction for negligently caused loss is lawful and must be offset; net unlawful deductions payable are Ksh. 127,241.
Sections 17 and 19 of the Employment Act permit deductions where an employee's negligence causes loss. The respondent admitted the mistake, apologised and consented to repay Ksh. 60,000, so the award of Ksh. 178,241 must be reduced accordingly.
Legal principles established
#- On desertion, the employer must still bring the employee to account under Sections 41 and 44 of the Employment Act and issue notice terminating employment to bring closure.
- Parties to an employment contract cannot agree to a wage below the prescribed minimum wage inclusive of house allowance; the two cannot be awarded separately.
- Compensation and notice pay under section 49(2) must be computed on the last gross wage.
Court orders
#- 1.Employment terminated unfairly
- 2.3 months' compensation Ksh. 118,344.45
- 3.Notice pay Ksh. 39,448.15
- 4.Underpayment inclusive of house allowance Ksh. 194,893.40
- 5.Unlawful deductions Ksh. 127,241
- 6.Costs of the suit before the trial court to the respondent
- 7.For the appeal, each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (ELRC), Mombasa
- CMELRC No. E150 of 2023
- Jurisdiction invoked
- First appeal to the Employment and Labour Relations Court from the subordinate court (Section 12, Employment and Labour Relations Court Act)
Relief refused
#Appellant's prayer that the entire judgment be set aside and the claim dismissed
The court found the trial court correctly held there was unfair termination, only varying the quantum.
Costs
Costs of the suit before the trial court awarded (to the respondent); for the appeal, each party to bear its own 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.
Whereas the parties to an employment contract are allowed to negotiate terms and conditions thereof, they cannot contract to pay a wage below the minimum legal threshold under the prescribed Wage Orders.
Desertion or abandonment of duty is an act of gross misconduct. However, the employee does not terminate his employment.
Accordingly, judgment of the trial court in Mombasa CMELRC No. 150 of 2023 is reviewed in the following terms;
For the appeal, each party to bear its costs.
in tabulating the compensation amount, the last gross wage in September 2022 is the applicable rate under section 49(2) of the Act.
Issues in the judgment
#Underpayment arithmetic anomalies: the May 2022 minimum wage is stated as Ksh. 43,302.75, but the gross (basic plus house allowance) is computed as Ksh. 39,448.15, which is lower; and 'Ksh.10.221.05' appears to be a typographical error for Ksh. 10,221.05.
The judgment records that the appellant's case was that the respondent 'causing two new tyres to blow out, resulting in a loss of Ksh. 60,000 to the respondent' - the loss is to the appellant, not the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Greatlaes Trans (K) Limited v Robert Mackoy Limited (Appeal E081 of 2025) [2025] KEELRC 2663 (KLR)", Case Analysis (2025). Mombasa ELRC Appeal (arising from Mombasa CMELRC No. E150 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2663/eng@2025-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.