Kimuyu v Unik Driving School (Appeal E258 of 2024) [2025] KEELRC 2993 (KLR)
The bottom line
#A Kenyan court ruled that an employee who abandons their job is not automatically fired — the employer must formally end the employment or face an unfair termination claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the appellant was unfairly terminated or deserted duty
The appellant's claim of verbal dismissal was correct because the respondent never took disciplinary action nor formally terminated the employment
The court adopted authorities holding that desertion is a unilateral act that cannot end a contract until the employer acts on it. The respondent took no disciplinary action and issued no formal termination, leaving the appellant 'at large'. Without adhering to sections 35, 41 or 44 of the Act, the termination was unfair.
Entitlement to notice pay
The appellant was entitled to notice pay of Ksh. 17,000
Having found the termination unfair and without notice under sections 35, 41 or 44 of the Act, the court awarded one month's salary as notice pay based on the appellant's monthly wage of Ksh. 17,000.
Assessment of compensation for unfair termination
Only minimum compensation of one month's pay (Ksh. 17,000) awarded due to the appellant's poor work record and unchallenged evidence he secured new employment
Under section 45(5) of the Act, the court must consider the employee's work record. The appellant had multiple warnings for absenteeism, soliciting money from students and causing an accident. Awarding more would reward gross misconduct.
Claim for house allowances
Claim for house allowances failed as the wage was consolidated and above minimum wage, and the claim was time-barred under section 90
The letter of employment was not filed to show house allowance was not consolidated; the Ksh. 17,000 wage exceeded the Mombasa minimum wage. Further, house allowance is a continuing injury claimable within 12 months of cessation; the suit filed 22 November 2023 exceeded that period.
Legal principles established
#- Desertion cannot bring a contract of service to closure until the employer acts on it by formally terminating the employment
- Where an employee abandons employment, the employer must invoke section 18(5)(b) of the Employment Act and issue written notice served upon the labour officer
- An employee's poor work record must be taken into account in assessing compensation for unfair termination under section 45(5)
Court orders
#- 1.Declaration that the appellant's employment was terminated unfairly
- 2.Award of notice pay of Ksh. 17,000
- 3.Award of compensation of Ksh. 17,000 (one month's pay) to be subjected to statutory deductions under section 49(2) of the Employment Act
- 4.Each party to bear its costs for the appeal and the trial court
- On appeal from
- Magistrates' Court (ELRC), Mombasa
- CMELRC No. E757 of 2023
- Jurisdiction invoked
- First appeal under the Employment and Labour Relations Court (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimuyu v Unik Driving School (Appeal E258 of 2024) [2025] KEELRC 2993 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2993/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.