Kuria v Kenya Broadcasting Corporation (Civil Appeal 382 of 2018) [2026] KECA 971 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that wrongly fired employees cannot claim salaries and pensions they would have earned up to retirement; awards are limited to notice pay and accrued benefits.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether anticipatory benefits in the form of salary and other benefits up to retirement age can be granted to a wrongly/unlawfully terminated employee
- 2.If anticipatory benefits are merited, the quantum and basis for such quantum
- 3.Whether the trial Judge erred in failing to consider the pleadings, documents and evidence in assessing quantum
- 4.Whether the appellant's failure to address the respondent's counterclaim in submissions justified the trial court's award on the counterclaim
Key legal issues
#Entitlement to anticipatory benefits (salary, allowances and pension up to retirement age) after unlawful termination
Such claims are unavailable in law; remedies for unlawful termination are confined to contractually or statutorily provided benefits such as notice pay, accrued benefits and pension entitlements
The court applied the Supreme Court's recent decision in Ngokonyo & 2 others v Telkom Kenya Ltd, which resolved conflicting authorities and settled that anticipatory salaries lack statutory foundation under both the repealed and current Employment Acts, amount to unjust enrichment and offend public policy, and that employees have a duty to mitigate. As a first appellate court bound by stare decisis, the Court held the appellant could not claim anticipatory benefits, and the secondary issues on proof of quantum fell away.
Applicable remedies for termination effective 1st November 2005 under the repealed Employment Act
Only salary in lieu of the contractual notice period was available; the section 49 unfair-termination remedies of the 2007 Act did not apply retrospectively
Termination took effect on 1st November 2005 when the applicable law was the repealed Employment Act Cap 226. The appellant did not dispute the trial Judge's finding that the concept of unfair termination and remedies under section 49 of the Employment Act, 2007 only arose from 2nd June 2008. Accordingly the claim for lost earnings of Kshs 73,719,706.60 and exemplary damages had no basis.
The counterclaim of Kshs 52,622.80
The trial Judge's allowance of the counterclaim stands; the appellant's Reply contained bare denials and his submissions did not address the counterclaim
The Court perused the Reply to Amended Defence and Defence to Counterclaim and found bare denials; the appellant's submissions of December 2014 and the reply of 13th March 2017 made no reference to the counterclaim. The Court declined to disturb the trial Judge's findings, merely clarifying that a Reply was on record.
Legal principles established
#- The Court of Appeal is bound by the Supreme Court's decision in Ngokonyo that claims for anticipatory salaries or future salary earnings up to retirement lack a statutory foundation and cannot be awarded
- Under the repealed Employment Act (Cap 226), the remedy for unlawful termination was payment of salary for the notice period required under the contract; the section 49 remedies under the Employment Act, 2007 apply only from 2nd June 2008
- A party who fails to plead or submit on a counterclaim, lodging only bare denials, cannot later challenge an award on that counterclaim on appeal
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Nairobi ELRC Cause No. 801 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate jurisdiction; the judgment does not state a specific constitutional or statutory provision
Relief refused
#Set-aside of the ELRC judgment and substitution with an award of lost earnings and lost pension of Kshs 73,719,706.60 from December 2005 to May 2021
Anticipatory benefits are not awardable in law per the Supreme Court's binding decision in Ngokonyo; and under the repealed Employment Act the remedy was confined to salary in lieu of notice
Exemplary damages
The appellant was paid 3 months' salary in lieu of notice and the claim had no basis under the repealed Employment Act
Referral back to the ELRC for hearing before a different Judge (alternative prayer)
The appeal was found to be without merit and dismissed
Costs
No order as to costs, given the circumstances giving rise to the appeal (neither costs of the appeal awarded; the trial court had ordered each party to bear their own costs)
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 are bound by the decision of the Supreme Court, and we accordingly find that the appellant cannot claim any anticipatory benefits in the form of salary and other benefits he would have earned until his retirement as claimed in his Amended Plaint dated 3rd July 2018.
Under the repealed Employment Act, the remedy available for unlawful termination was the payment of salary for the period of the notice of termination that was required to be given under the employment contract.
In light of this finding, the secondary issues raised by the appellant as regards the proof of the said anticipatory benefits fall by the wayside.
This appeal is accordingly found to be without merit, and is hereby dismissed with no order as to costs, given the circumstances giving rise to the appeal.
It is so ordered.
Issues in the judgment
#Internal inconsistency in the claim amount: the amended plaint is said to claim Kshs 73,719,706.60, while elsewhere the judgment refers to Kshs 62,622.80 in the counterclaim and Kshs 302,622.80 less Kshs 240,000/= (which equals Kshs 62,622.80), yet the ELRC awarded Kshs 52,622.80 on the counterclaim
Discrepancy in the date of the Amended Plaint: described as filed on 3rd July 2013 but later referred to as dated 3rd July 2018
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kuria v Kenya Broadcasting Corporation (Civil Appeal 382 of 2018) [2026] KECA 971 (KLR)", Case Analysis (2026). Court of Appeal Appeal arising from Nairobi ELRC Cause No. 801 of 2013 (Memorandum of Appeal dated 8th October 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/971/eng@2026-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.