Tribe Hotel Limited v Muoki (Civil Appeal 244 of 2019) [2024] KECA 1673 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a hotel employee's award of 12 months' salary for unfair termination, ruling that employers must prove the reason for dismissal.
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 was unfairly terminated from the appellant's employment
- 2.Whether the respondent was entitled to the reliefs sought in her statement of claim, including the quantum of the awards for compensation, punitive damages, school fees refund, and whether notice pay and compensation amounted to double compensation
Key legal issues
#Whether the respondent was unfairly terminated or had voluntarily resigned
The respondent did not resign; she was forced out of her employment without notice and without a fair hearing, in breach of sections 41, 43 and 45 of the Employment Act, and the termination was unfair.
The Court re-evaluated the evidence under Rule 31(1)(a) of the Court of Appeal Rules, 2022. The respondent's exit computation listed dismissal, termination and redundancy but not resignation; the General Manager did not sign it; a letter of 16th July 2014 showed she had been removed from the payroll and told to leave before 5pm; and she was summoned hurriedly to answer allegations from an anonymous e-mail without notice, time to prepare, or a representative. The trial judge's finding of unfair termination was therefore upheld.
Whether the maximum award of 12 months' salary under section 49(1)(c) of the Employment Act was justified
The maximum award of Kshs.7,507,716.00 was affirmed; the trial court exercised its discretion judicially, and the appellant failed to demonstrate any misdirection.
Quantum is a matter for the trial court's discretion, and appellate interference is limited to cases where the discretion was exercised injudiciously or capriciously (Mbogo vs. Shah; Edward Sargent). The judge considered the respondent's stellar performance, absence of disciplinary cases, and the statutory factors in section 49(4). The award was made subject to applicable statutory deductions, loans or advances.
Whether a civil court can impose or award the section 51(3) fine for failure to issue a certificate of service
It cannot. The section 51(3) penalty is criminal and requires conviction; the Kshs.100,000.00 award was quashed and substituted with an order that the appellant issue a certificate of service within 30 days.
Following CAFS vs. Jonathan Spangler and Said Ndege vs. Steel Makers Limited, the Court held that the proper civil remedy is an order for release of the certificate under sections 51(1) and (2); a party seeking punishment for the offence must complain to the police or an authorised labour officer. Converting the fine into a payment to the employee was not in conformity with section 51(3).
Whether awarding three months' salary in lieu of notice together with 12 months' compensation amounts to double compensation
No. The remedies under sections 49(1)(a) and (b) of the Employment Act are discretionary and can be awarded concurrently; the trial court's awards were affirmed.
Relying on International Planned Parenthood Federation vs. Pamela Ebot Arrey Efiom, the Court noted that section 49(1) provides a range of remedies and the first two remedies of notice pay and twelve months' pay may be awarded concurrently. The respondent was also entitled to the school fees refund of Kshs.26,500.00, which the appellant conceded before the trial court and did not object to.
Legal principles established
#- The burden of proving the reasons for termination of employment rests on the employer, and where the employer fails to do so, the termination is deemed unfair under section 45 of the Employment Act.
- Compliance with section 41 of the Employment Act requires that, before termination on grounds of misconduct, an employee be notified of the allegations, given sufficient time to prepare a defence, and accorded the presence of a representative of their choice.
- Notice pay under section 49(1)(a) and compensation for unfair termination under section 49(1)(c) of the Employment Act can be awarded concurrently and do not constitute double compensation.
- The penalty in section 51(3) of the Employment Act for wilful failure to issue a certificate of service is a criminal offence punishable upon conviction and cannot be enforced by a civil court converting the fine into damages payable to the employee; the proper civil remedy is an order for release of the certificate of service under section 51(1) and (2).
- An appellate court will not interfere with a trial court's discretionary award of compensation unless it is shown that the discretion was not exercised judicially - that the judge misdirected himself, acted on wrong principles, or took into account irrelevant matters or failed to consider relevant ones.
- An appellate court will not normally interfere with a finding of fact by the trial court unless the finding is based on no evidence, founded on a misapprehension of the evidence, or the judge acted on wrong principles or failed to consider relevant materials.
Court orders
#- 1.The award of Kshs.100,000.00 to the respondent for violating section 51(3) of the Employment Act is set aside and substituted with an order that the appellant issues to the respondent a certificate of service within 30 days from the date of the judgment
- 2.All the other awards issued by the trial court are affirmed
- 3.Each party shall bear its own costs of the appeal, but the appellant shall bear the costs of the suit before the ELRC
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Cause No. 1712 of 2014 (Angela Wokabi Muoki vs. Tribe Hotel Limited)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 31(1)(a) of the Court of Appeal Rules, 2022) from the ELRC
Relief refused
#Retention of the punitive damages award of Kshs.100,000.00 payable to the respondent under section 51(3) of the Employment Act
The fine under section 51(3) can only be imposed on conviction in criminal proceedings; condoning it into a payment to the employee was not in conformity with the section, so the award was quashed and substituted with an order for issuance of a certificate of service
Appellant's challenge to the award of 12 months' salary as compensation for unfair termination
The trial court exercised its discretion judicially, considering the respondent's exemplary performance and the section 49(4) factors; no basis for appellate interference was demonstrated
Appellant's contention that the award of school fees refund was discretionary and not part of the respondent's earnings
The record showed the respondent was entitled to the refund, the appellant conceded it in submissions before the trial court and did not object to it
Appellant's argument that awarding notice pay together with 12 months' compensation amounts to double compensation
Section 49(1) permits the remedies of notice pay and compensation to be awarded concurrently at the court's discretion
Appellant's assertion that the respondent voluntarily resigned
Re-evaluation of the evidence showed the respondent was removed from the payroll and told to hand over and leave before any resignation was formalised
Costs
Each party shall bear its own costs of the appeal, but the appellant shall bear the costs of the suit before the ELRC.
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.
The award of Kshs.100,000.00 to the respondent for violating section 51 (3) of the Employment Act is hereby set aside and substituted with an order that the appellant issues to the respondent a certificate of service within 30 days from the date of this judgment.
Each party shall bear its own costs of the appeal, but the appellant shall bear the costs of the suit before the ELRC.
We afirm all the other awards issued by the trial court.
The foregoing lapses were a clear afiront to Section 41 of the Employment Act. The fairness of a dismissal from employment must be considered in light of whether an employer has satisfied the requirements of the Employment Act which provide for termination of employment or dismissal of an employee, therefore, we uphold the trial court's finding that the termination was unfair.
We are not satisfied that the trial court injudiciously or capriciously exercised its discretion in awarding the 12 months' salary as compensatory damages.
From our emphasis, it is clear that the first two remedies of notice pay and twelve months pay can be awarded concurrently. There is no doubt that the remedies are discretionary in nature and the discretion should be exercised judiciously.
Issues in the judgment
#The judgment inconsistently records the respondent's gross monthly salary in different passages (Kshs.645,623.00 in the facts, Kshs.625,543.00 and Kshs.625,643.00 in the trial judge's quoted holding), and mislabels the numbering of quoted paragraphs of the trial 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.
- Mburu v Tessera Limited (Cause E469 of 2023) [2025] KEELRC 2198 (KLR)[2025] KEELRC 2198 (KLR)24 Jul 2025applied
Cite this brief
#Cite this brief
Caselaw, "Tribe Hotel Limited v Muoki (Civil Appeal 244 of 2019) [2024] KECA 1673 (KLR)", Case Analysis (2024). Civil Appeal ( memorandum of appeal dated 10th April, 2019, from ELRC Cause No. 1712 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1673/eng@2024-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.