Nderitu t/a Nairobi Millenium Fast Food v Kariuki (Civil Appeal 455 of 2019) [2026] KECA 407 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed a chef was unfairly dismissed by an employer who denied employing him, but cut his compensation to the amount he actually claimed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was an employer-employee relationship between the appellant and the respondent
- 2.Whether the respondent was unlawfully and unfairly dismissed from employment by the appellant
- 3.Whether the trial court erred in awarding Kshs. 130,000/- as compensation for unfair dismissal when only Kshs. 39,000/- was pleaded
Key legal issues
#Existence of an employer-employee relationship
The respondent established an employment relationship with the appellant on a balance of probabilities; the appellant's denial did not controvert the respondent's credible account.
Section 2 of the Employment Act defines an employer as one who enters into a contract of service, which may be oral or written, express or implied. The respondent testified he was employed as a chef by the previous owners and then by the appellant upon takeover. The appellant did not deny operating a hotel at the same premises commencing around the time of termination, so his evidence corroborated the respondent's account rather than rebutting it.
Award of compensation exceeding pleaded claim
The trial judge misdirected himself by awarding Kshs. 130,000/- (ten months' salary) when the respondent had specifically pleaded Kshs. 39,000/- and never amended his pleadings.
Although section 49 of the Employment Act permits compensation of up to twelve months' salary and the award was within that statutory ceiling, a court cannot grant a remedy that was not sought. The respondent specifically claimed Kshs. 39,000/- in his statement of claim and did not amend pleadings. Granting more than pleaded was an error warranting appellate interference, and the award was set aside and substituted with the pleaded sum.
Duty of a first appellate court
As a first appellate court, the Court of Appeal reconsiders and re-evaluates the evidence and draws its own conclusions, departing from trial findings only where they were not based on the evidence, where wrong principles of law were applied, or where discretion was exercised injudiciously.
Relying on Selle v Associated Motor Boat Co Ltd, Jabane v Olenja and Mbogo v Shah, the court restated the standard: it must reconsider and evaluate the evidence afresh but will not disturb findings that are grounded in the record, made on correct principles, or reached through a judicious exercise of discretion.
Discretion under section 49 of the Employment Act
Compensation under section 49 is discretionary, capped at twelve months' salary, and each case must be decided on its own facts; the discretion must not be capricious or whimsical.
Following Kenfreight (E.A) Limited v Benson K. Nguti and Ol Pejeta Ranching Limited v David Wanjau Muhoro, the court affirmed that once unlawful termination is established, the judge exercises discretion over section 49 remedies, and an appellate court will not interfere absent misdirection or manifest error occasioning injustice.
Legal principles established
#- A trial judge may not award compensation for unfair dismissal exceeding the amount specifically pleaded, absent amendment of pleadings.
- An employment relationship may be established by oral testimony; a contract of service may be oral, written, express or implied.
- An appellate court will not interfere with a trial judge's exercise of discretion on compensation unless it was exercised injudiciously or capriciously.
Court orders
#- 1.Appeal partially allowed only to the extent of setting aside the award of Kshs. 130,000/- as compensation for unlawful and unfair dismissal
- 2.Substituted an award of Kshs. 39,000/- as compensation for unlawful and unfair dismissal
- 3.Upheld the other awards of the trial court, with the result that the total award payable is Kshs. 106,600/-
- 4.Interest on the total award at court rates from the date of the appellate judgment until payment in full
- 5.Appellant to meet the costs of the suit in the ELRC and of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Nairobi ELRC No. 1607 of 2014
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the Employment and Labour Relations Court
Relief refused
#Appellant's challenge to the finding of an employer-employee relationship and the awards of notice pay and service gratuity
The court found the respondent's evidence on employment and termination credible and the appellant's evidence did not controvert it
Respondent's entitlement to the full Kshs. 130,000/- compensation awarded by the trial court
The trial judge granted a remedy exceeding what was specifically pleaded and never amended
Costs
The appellant shall meet the costs of the suit in the ELRC and of this appeal.
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.
We therefore partially allow the appellant's appeal, only to the extent that we set aside the award by the trial Judge of Kshs.130,000/= as compensation for the unlawful and unfair dismissal and substitute therefor an award of Kshs. 39,000/= .
The other awards made by the trial Judge in the judgment dated 12th October 2018 are upheld, with the result that the total award payable by the appellant to the respondent shall be Kshs 106,600/=, with interest from the date of this judgment until payment in full.
The appellant shall meet the costs of the suit in the ELRC and of this appeal.
In effect, the trial Judge ended up granting a remedy that was not sought by the respondent.
A contract of service is defined as any contract of employment for a period of time, whether oral, or in writing, express or implied or even a contract of apprenticeship and indentured learnership, all qualify as contracts of service.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nderitu t/a Nairobi Millenium Fast Food v Kariuki (Civil Appeal 455 of 2019) [2026] KECA 407 (KLR)", Case Analysis (2026). Nairobi ELRC Appeal arising from Nairobi ELRC No. 1607 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/407/eng@2026-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.