Alba Petroleum Limited v Jackson Kivilu [2018] KECA 22 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the dismissal was unfair because the employee never got a proper hearing, but halved the compensation award to six months' salary.
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 respondent's termination was procedurally fair under Section 41 of the Employment Act
- 2.Whether the appellant proved that the reasons for the dismissal were valid under Section 45(2) of the Employment Act
- 3.Whether the learned Judge erred in awarding the maximum 12 months' salary as compensation under Section 49(1)(c) of the Employment Act
Key legal issues
#Procedural fairness in termination under Section 41 of the Employment Act
The respondent was never given a hearing prior to termination; the warning letter did not invite a response and contained only general allegations without particulars
The warning letter's allegations were couched in a general manner and the respondent sought clarification from the Managing Director which was never given. The letter did not invite the respondent to respond, and there was no evidence of any disciplinary hearing or minutes. No performance targets or appraisals had been set, so there was no basis for gauging the alleged poor performance.
Validity of the reasons for dismissal under Section 45(2) of the Employment Act
The appellant failed to prove that the reason for the respondent's dismissal was valid
The evidence did not satisfactorily prove the allegations of poor performance and theft. The respondent's uncontroverted evidence was that no performance targets had been set and no performance appraisal had ever been conducted, leaving no basis on which his performance could have been gauged.
Assessment of compensation under Section 49(1)(c) of the Employment Act
The maximum award of 12 months' salary was unsupported by proper reasons and is set aside and substituted with 6 months' salary
The trial judge's reasons - the respondent's age of 60 years, length of service, and absence of pension or gratuity - did not support a maximum award. Retirement at 60 is normal, and pension and gratuity were extraneous matters not part of the contract; terminal dues had already been settled. The award was reduced to 6 months' salary.
Legal principles established
#- An appellate court will interfere with quantum only where the trial judge took into account an irrelevant factor, left out a relevant one, or the award is so inordinately low or high as to be a wholly erroneous estimate
- A warning letter couched in general terms that does not invite the employee to respond does not satisfy the hearing requirement under Section 41 of the Employment Act; the employee must be given notice containing sufficient details of the allegations and an opportunity to be heard
- A maximum award of compensation for unfair termination must be supported by assigned reasons and consideration of the relevant principles on assessment of damages
- The primary role of the first appellate court is to re-evaluate, re-assess and re-analyze the evidence before the trial court while being cognisant that it neither saw nor heard the witnesses
Court orders
#- 1.The maximum award of 12 months' salary as damages for unfair termination is set aside
- 2.Substituted with an award of 6 months' salary as damages for wrongful termination, translating to Ksh.809,076 subject to statutory deductions
- 3.Interest to accrue from the date of the trial court's judgment
- 4.Each party to bear their own costs of the appeal
- 5.The appellant to bear the costs of the High Court proceedings as ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Mombasa
- E.L.R.C Cause No. 156 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over the Employment and Labour Relations Court
Relief refused
#The appellant's prayer for a total overturning of the finding of unfair termination
The appellant failed to prove a valid reason for dismissal and did not accord the respondent a hearing
The respondent's entitlement to the maximum 12 months' compensation
The maximum award was made without reasons and without consideration of relevant principles on assessment of damages
Costs
Each party shall bear their own costs of this appeal, but the appellant shall bear the costs of the High Court proceedings as ordered.
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.
Due process is a fundamental aspect of the rule of law. It is the right to a fair hearing. The right to a fair hearing is encapsulated in the audi alteram partem rule (no person should be condemned unheard) and founded on the well-established principles of natural justice.
In as much as the appellant claims that he was given such a hearing through the warning letter but refused and/or neglected to respond, it is clear that the letter never invited the respondent to respond.
As a result, the appellant failed to prove that the reason for the respondent's dismissal was valid as required under Section 45(2) of the Employment Act.
The primary role of the Court as the first appellate court is, to re-evaluate, re-assess and re-analyze the evidence before the trial court and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.
In this regard therefore this appeal ought to succeed in part to the extent that the maximum award of damages for unfair termination is hereby set aside and substituted with an award of 6 months being damages for wrongful termination and thus translating to an award of Ksh.809,076 subject to statutory deductions.
We order that each party shall bear their own costs of this appeal but the appellant shall bear the costs of the High Court proceedings as ordered.
Issues in the judgment
#The judgment inconsistently states the respondent's length of service: the background describes employment from September 1996 (about 17 years), while the discussion of damages refers to 27 years of service
The judgment inconsistently refers to the appellant as being 'of an advanced age of 60 years' when it is the respondent, a natural person, who was aged 60
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.
- Ndegwa v Mwangi (Environment and Land Case E15 of 2023) [2025] KEELC 6732 (KLR)[2025] KEELC 6732 (KLR)7 Oct 2025
Cite this brief
#Cite this brief
Caselaw, "Alba Petroleum Limited v Jackson Kivilu [2018] KECA 22 (KLR)", Case Analysis (2018). Civil Appeal No. 1 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/22/eng@2018-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.