Miles Motors Ltd v John Makori Kenyanya
The bottom line
#A Kenyan employer who claims a worker absconded must prove it with records and a hearing, or the law treats it as unfair dismissal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred by finding unfair termination and awarding the resultant terminal dues
- 2.Whether the trial court erred by awarding the Respondent house allowance of Ksh. 207,900/=
Key legal issues
#Whether the Respondent was unfairly terminated
The Appellant failed to prove voluntary resignation or desertion; it was deemed to have terminated the services, and the termination was both substantively and procedurally unfair
The employer, as custodian of records under section 74, produced no resignation letter, no evidence of abscondment, no efforts to trace the employee, no disciplinary process under section 41, and no notice to the Labour Officer under section 18(5)(b). Desertion requires intention not to return, demonstrated by absence of communication, duration and impact. Substantive fairness under sections 43 and 45 and procedural fairness under section 41 were both absent.
Whether the award of 5 months' compensation and one month's notice pay was erroneous
The awards were reasonable and not erroneous given over 7 years of aggregate service and termination without notice
Compensation under section 49(1)(c) is discretionary; interference requires an error leading to an erroneous decision. With over 7 years of service and termination without notice contrary to section 36, five months' compensation and one month's notice pay were justified.
Whether house allowance of Ksh. 207,900 was payable
The award was upheld; the employer produced no evidence of consolidated salary, housing or provision of rent, and 15% of basic salary was reasonable
Under section 31 of the Employment Act the employer must prove consolidation or provision of accommodation. No payslip was produced and the employment letter referred to monthly salary only. The claim was a continuing injury filed within 12 months under section 90, and the 7.7-year period used was the period actually worked.
Legal principles established
#- Where an employer alleges an employee deserted or voluntarily left employment, the employer bears the burden of proving resignation, abscondment or efforts to trace the employee; absent such proof the employer is deemed to have terminated the services
- Dismissal on account of absconding must be preceded by reasonable attempts to contact the employee and a show cause letter, and where the employee cannot be traced, notice to the Labour Officer with deposit of terminal dues
- Section 41 of the Employment Act is mandatory; failure to accord a hearing renders the outcome of the process unfair
- House allowance claims are continuing injuries which must be filed within 12 months of cessation of employment under section 90 of the Employment Act
- An appellate court will not interfere with the trial court's exercise of discretion on compensation unless the discretion was exercised on an error of principle occasioning injustice
Court orders
#- 1.The Appeal is dismissed with costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Milimani Chief Magistrates Court
- MCELRC No. E1304 of 2021
- Jurisdiction invoked
- Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the magistrates' court (Employment and Labour Relations Court Act)
Relief refused
#Setting aside of the trial court judgment and decree and allowing of the appeal
The Appellant failed to justify the alleged voluntary leaving or absconding; termination was substantively and procedurally unfair and the house allowance award was supported by evidence
Costs
Appeal dismissed with costs to the Respondent
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.
in the absence of evidence of resignation or absconding of duty, or effort by the Appellant to trace the Respondent on allegations of voluntary desertion of duty, the Appellant was deemed to have terminated the services of the Respondent.
In conclusion this court agrees with the trial court decision and finds that the Respondent’s termination was both substantively and procedurally illegal, unfair and justified.
Section 41 of the Employment Act is couched in mandatory terms. Where an employer fails to follow these mandatory provisions, whatever outcome of the process is bound to be unfair
In the upshot the Appeal is devoid of merit and is hereby dismissed with costs to the Respondent.
It is so ordered.
Issues in the judgment
#Conflicting dates of the trial court judgment
Same judgment dated differently in the memorandum of appeal
Party confusion in drafting
Section 41 violation attributed to the wrong party
Inconsistent service-break accounts
Inconsistent service-break duration
Inconsistent house allowance figures
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miles Motors Ltd v John Makori Kenyanya", Case Analysis (2026). Appeal E027 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2505/eng@2026-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.