A coconut delivery triggered a bitter employment fight after a driver said his boss ordered him home. The court found Beyond Fruits failed to prove he deserted work, upholding his KSh297,960 award.
A dispute involving 3,000 coconuts has ended with Beyond Fruits Limited losing its employment appeal.
The Employment and Labour Relations Court in Mombasa upheld a KSh297,960 award to driver Said Salim Lewa.
Justice Ocharo Kebira dismissed the company’s appeal and upheld the lower court’s judgement.
The decision turned on a simple but consequential question: did Lewa leave, or was he dismissed?
That question also determined whether his 2024 employment claim had been filed within time.
The judge ultimately accepted Lewa’s account and rejected the company’s version of events.
Coconut Clash
Lewa joined the company on June 5, 2019, as a medium-sized vehicle driver.
The company was then operating under the name Fresh An Juici Limited.
His duties included collecting goods from suppliers and distributing them to the company’s customers.
He earned KSh16,500 monthly, which he claimed was below the statutory minimum wage.
The dispute erupted on July 5, 2021, after Lewa travelled to Kikambala for coconuts.
He returned with 3,000 small coconuts, according to his account before the court.
He was then summoned by manager Moti Sidi Mwamleu over the size of his consignment.
Lewa said Mwamleu accused him of carrying more coconuts than the vehicle should handle.
He explained that he had collected the quantity ordered, but the explanation did not help.
According to Lewa, the manager ordered him home and told him never to return.
Lewa later returned several times seeking permission to resume work, but those efforts failed.
Beyond Fruits disputed almost every part of that account and offered another version.
The company said Lewa had abandoned his job months earlier, on February 5, 2021.
That difference of five months became the central battleground in the appeal.
Desertion Fight
Beyond Fruits maintained that Lewa simply disappeared and never returned to work.
The company said it tried tracing him but could not establish his whereabouts.
It consequently argued that his May 2024 lawsuit was filed outside the statutory limitation period.
That argument depended entirely on February 5, 2021, being treated as his departure date.
Lewa insisted that his employment continued until the alleged dismissal on July 5.
Justice Kebira found the company’s evidence insufficient to establish that Lewa deserted his job.
The employer produced no call logs, message screenshots or correspondence requiring Lewa to resume work.
It also produced no show-cause letter or disciplinary record concerning his alleged absence.
The court found those omissions particularly important because desertion requires more than unexplained absence.
An employer must take reasonable steps before treating an employee’s conduct as abandonment.
The absence of Mwamleu from the proceedings also became significant to the court’s reasoning.
Lewa had specifically identified him as the manager who ordered him to leave.
Yet Beyond Fruits did not call Mwamleu to contradict that account before the court.
The judge considered him an important witness who could have addressed the disputed events directly.
His absence consequently weakened the company’s attempt to establish its version.
Limitation Defeat
The desertion argument carried another risk because employment claims face statutory limitation periods.
Section 89 of the Employment Act generally requires such claims within three years.
Once the court accepted July 5, 2021, as the termination date, Lewa’s claim remained within time.
His claim was filed in May 2024, several weeks before the three-year deadline expired.
Beyond Fruits later argued that some claims constituted continuing injuries requiring earlier filing.
Justice Kebira rejected that argument because the company had not properly pleaded it.
The judge delivered a concise warning about the limits of arguments introduced through submissions.
“Submissions, however cogent, are not pleadings,” Justice Kebira stated.
The company could not introduce a new limitation defence through written submissions alone.
The ruling therefore preserved Lewa’s claims for underpayment, house allowance and leave.
KSh298,000 Award
The original magistrate awarded Lewa KSh297,960 after finding his dismissal unfair.
The award covered notice pay, leave, house allowance, underpayments and compensation.
Lewa received KSh16,500, representing one month’s salary, instead of the required notice.
The court also upheld the award for accrued leave because Beyond Fruits produced no leave records.
The compensation component amounted to two months’ salary for the unfair termination.
Justice Kebira found no basis for disturbing that modest compensation award.
The judge noted that the magistrate had considered Lewa’s length of service and circumstances.
There was, however, an interesting issue concerning the underpayment calculations.
The appellate court found errors in the magistrate’s mathematical computation of that particular award.
Lewa had not filed a cross-appeal seeking a larger amount, however, limiting what the appellate court could change.
The original award consequently remained intact despite the identified calculation errors.
The court also left undisturbed the decision denying service pay because Lewa was an NSSF member.
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The appeal therefore failed, leaving Beyond Fruits with the original financial liability.
The company must also pay Lewa’s costs for defending the appeal.
The case began with a disputed coconut delivery but ended with a broader employment-law lesson.
Employers cannot simply label an absent worker a deserter and close the employment file.
They must investigate the absence, document their efforts and follow the applicable disciplinary process.
For Lewa, the five-year journey from the coconut dispute has now ended with the award intact.
For Beyond Fruits, a disagreement involving 3,000 coconuts has proved considerably more expensive than expected.
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