Grace Otieno v The Salaries and Remuneration Commission
The bottom line
#Kenya's Court of Appeal confirmed that unfair dismissal compensation stays at six months unless an employee proves strong reasons for the twelve-month maximum.
What this practically means
#Executive summary
#Key legal issues
#Notice pay on termination of a contract silent on notice
Where the contract is silent, section 35(1)(c) of the Employment Act applies and only one month's salary in lieu of notice is payable for a contract paying monthly wages
The appellant's letter of appointment had no provision for three months' notice. Section 35(1)(c) and (2) provides that a contract for an indeterminate period with monthly pay is terminable by either party on 28 days' notice in writing. Failure to give one month's notice obliges the employer to pay one month's salary in lieu. The trial Judge correctly resorted to the statute in the absence of contractual provision.
Gratuity and salary for remainder of contract
Claims for gratuity and pay for the unexpired contract term fail for lack of proof of an entitlement; awarding salary for the unexpired term where the employee has returned to her former job would be undue enrichment
The letter of appointment referred to a remuneration schedule which was never produced, so there was no evidential or contractual basis for gratuity. The contract contained a termination clause, so completion of the five-year term was not certain. Further, the appellant was on secondment and had returned to her former job, so compensating the full unexpired period would unjustly enrich her.
Quantum of compensation for unfair termination
Six months' compensation was a proper exercise of discretion; the maximum twelve months' award requires cogent reasons which were absent here
Interference with quantum is permitted only where the Judge acted on a wrong principle or the award is an entirely erroneous estimate. The Judge was conscious the five-year contract was terminated but also considered the termination clause and the appellant's return to her former job. Citing NSSF v Kazungu, CMC Aviation and Ol Pejeta, maximum awards must be justified by reasons; none were needed for the moderate six-month award given her poor performance.
Legal principles established
#- On a first appeal, the appellate court must re-assess and re-evaluate the evidence and reach its own conclusions while giving due deference to the trial Judge's findings of fact and law, and will be slow to interfere absent absence of evidence or unsupportable conclusions
- An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the Judge proceeded on wrong principles or misapprehended the evidence
- An award of the maximum twelve months' compensation for unfair termination must be accompanied by cogent reasons
- A party who alleges a fact must prove it; the burden of proof lies on the person asserting the legal right or liability
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs, the respondent not having participated
- On appeal from
- Employment & Labour Relations Court at Nairobi
- ELRC No. 862 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over the Employment & Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Otieno v The Salaries and Remuneration Commission", Case Analysis (2020). Civil Appeal No. 418 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/177/eng@2020-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.