Joseph Mdudu Kenga v NAS Airport Services Limited Mombasa & another [2020] KECA 770 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed workers must prove claims with documents, and can't invoke union CBA terms after dismissal if they never disclosed union membership.
What this practically means
#Executive summary
#Key legal issues
#Identity of the employer
The appellant was an employee of Manpower Networks Limited, not NAS Airport Services Limited.
Manpower produced the appellant's letter of application for employment as a supervisor with Manpower, an employment contract between the appellant and Manpower, leave application forms addressed to Manpower, and NHIF and NSSF remittance statements. The court found these documents sufficient proof that Manpower was the employer. The appellant produced no contrary documentation.
Whether termination was unjustified or a desertion
The trial court's finding that the employment was unjustifiably terminated was affirmed; the desertion allegation was unproved.
Under sections 107(1) and 108 of the Evidence Act, he who asserts must prove. Though Manpower claimed the appellant deserted duty by failing to attend a disciplinary hearing, there was no letter inviting him to the hearing nor minutes of proceedings, and Manpower's own witness admitted no formal process was adopted to terminate the contract.
Whether the award of 6 months' salary as compensation should be increased to 12 months
The appellate court declined to interfere with the discretionary award of 6 months' compensation.
Applying the Madan JA principles in United India Insurance Co. Ltd v East African Underwriters, an appellate court will not interfere with a discretionary award unless the judge misdirected himself in law, misapprehended the facts, took into account or failed to take into account relevant considerations, or the decision is plainly wrong. The appellant demonstrated none of these.
Whether the CBA applied so as to entitle the appellant to house allowance
The CBA could not be invoked retrospectively after the employment had ended where the employee never disclosed union membership to the employer.
The appellant admitted he never told the employer he was a union member and never brought the CBA terms to the employer's attention during employment. The court held it was too late to demand retrospective application of the CBA after termination, so only the employment contract applied, under which the monthly salary was inclusive of house allowance.
Legal principles established
#- On a first appeal, the Court of Appeal must re-evaluate, reassess and reanalyze the facts and reach its own conclusions.
- An appellate court will not interfere with a discretionary decision unless the judge misdirected himself in law, misapprehended the facts, took into account or failed to take into account relevant considerations, or the decision is plainly wrong.
- Where an employer alleges desertion, it must prove it took steps to notify the employee that the employment was terminated.
Court orders
#- 1.Appeal dismissed
- 2.Each party to bear their own costs
- On appeal from
- Employment and Labour Relations Court at Mombasa
- ELRC No. 681 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (first appeal on facts and law from the Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Mdudu Kenga v NAS Airport Services Limited Mombasa & another [2020] KECA 770 (KLR)", Case Analysis (2020). Civil Appeal No. 31 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/770/eng@2020-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.