Unilever Tea Kenya Limited v John Kememia Gitau [2017] KECA 55 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that where an employment contract has a notice clause, compensation for unfair dismissal is limited to that notice period—no extra damages.
What this practically means
#Executive summary
#Key legal issues
#The applicable statute at the date of termination
The applicable law at the termination on 23rd February 2007 was the Employment Act Chapter 226 (repealed), not the Employment Act 2007 which came into force later.
Both parties had admitted before the trial court that Cap 226 applied, and the trial court so found. The Employment Act 2007 came into force on 2nd June/July 2007, after the termination date. Section 16 of Cap 226 governed termination, permitting termination without notice upon payment of wages for the notice period required under the contract, which here provided for three months' notice.
Award of damages for unlawful termination under the repealed Act
The trial court erred in awarding Ksh.775,080/- (five months' gross salary) as damages for unlawful termination; under section 16 of Cap 226 general damages are not payable for breach of an employment contract.
Relying on Directline Assurance Co. Ltd v Jeremiah Wachira Ichaura, which restated Securicor Courier (K) Ltd and Joseph Ileli Kikumbi v Central Bank of Kenya, the court held that where the contract contains a termination clause, the measure of compensation is the period specified in that clause. Section 16 did not empower the court to order payment of damages, so the award of five months' salary could not stand and was set aside.
Legal principles established
#- Where the repealed Employment Act Cap 226 applies and the contract of service contains a termination clause, general damages beyond the notice-period compensation are not awardable for breach of the employment contract.
- Decisions of the then Industrial Court and the Employment and Labour Relations Court suggesting that damages are payable under the repealed Employment Act are not binding on the Court of Appeal.
- On a first appeal, the Court of Appeal must re-evaluate and re-assess the evidence and arrive at its own conclusions, while not interfering with trial court findings unless they are not based on the evidence or were reached on wrong principles.
Court orders
#- 1.The appeal is allowed to the extent that the award of Ksh.775,080/- as damages for unlawful termination is set aside
- 2.Costs of the appeal to the appellant
- On appeal from
- Industrial Court at Nakuru
- Industrial Cause No. 50 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate statutory framework (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ishmael Omula Egala & 7 others v Attorney General [2019] KEELRC 238 (KLR)[2019] KEELRC 238 (KLR)29 Nov 2019
Cite this brief
#Cite this brief
Caselaw, "Unilever Tea Kenya Limited v John Kememia Gitau [2017] KECA 55 (KLR)", Case Analysis (2017). Civil Appeal No. 117 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/55/eng@2017-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.