Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 869 of 2012· [2013] KEELRC 188 (KLR)

Mathew Nyanjong v East African Portland Cement Co. Ltd [2013] KEELRC 188 (KLR)

Industrial Court of Kenya
15 May 2013
DMD.K.N. Marete
2,523 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court awarded a unfairly fired cement company employee eleven months' salary because his employer treated him worse than colleagues in similar situations.

What this practically means

#

Executive summary

#
The Industrial Court at Nairobi, per D.K.N. Marete J, determined the sole surviving item in an employment dispute between Mathew Nyanjong and East African Portland Cement Co. Ltd. By consent, judgment had been entered for the claimant on items 1 to 4 of his claim (Kshs.1,967,890.00, reduced by Kshs.72,220.00 to a net Kshs.1,477,299.00 payable within thirty days, subject to statutory deductions, with a certificate of service to issue). Only item 5 - damages for unfair termination calculable at twelve months' gross salary under section 49(1)(c) of the Employment Act, 2007 - remained for trial. The claimant, a sales employee suspended for unauthorized credit sales of cement, argued his disciplinary hearing was a sham violating section 41 of the Employment Act, that the loss was fully mitigated by repayment, and that he was discriminated against because colleagues Chelang'a and Ombui, facing similar charges, were reinstated. The respondent justified the termination and sought dismissal of the claim. The court found the claimant's submissions on discrimination and unfairness emphatic, convincing and unrebutted. Applying the 'fair go all round' principle drawn from Rika J's decisions in David Mwangi Gioko and Maria Kagai Ligaga, and adopting the parties' 91% consent settlement rate as the compensation formula, the court awarded eleven months' gross salary (Kshs.2,132,419.85). Reinstatement was refused as not prayed for or made an issue for determination, and costs were awarded to the claimant.

Key legal issues

#
01

Whether the termination of the claimant was unfair, wrongful and discriminatory

Holding

The court found the claimant's submissions on discrimination and unfairness convincing and unrebutted by the respondent; the respondent failed to answer the claimant's case on procedural fairness and discrimination

Reasoning

The claimant was suspended for unauthorized credit sales, admitted the accusation at a clarification meeting, and was terminated on 18th November 2010. He argued the disciplinary hearing was a sham and a breach of section 41 of the Employment Act, and that he was discriminated against compared to colleagues Chelang'a and Ombui who were reinstated. The respondent asserted procedural fairness but did not rebut the discrimination and unfairness submissions, which the court found emphatic and convincing.

p. 5
02

The appropriate quantum of compensation for unfair termination under section 49(1)(c) of the Employment Act, 2007

Holding

Eleven (11) months' gross salary (Kshs.2,132,419.85) awarded, applying the fair go all round principle and mirroring the parties' 91% settlement rate on the other heads

Reasoning

The court held that compensation under section 49(1)(c) is discretionary and depends on the circumstances, guided by the magnitude of the unfair termination, its economic impact, the anguish suffered, the other relief awarded and the case as a whole. Invoking Rika J's fair go all round principle and the proportionate-compensation reasoning in the Coca Cola case, the court used the 91.0323% consent settlement rate to compute approximately 10.8 months, rounded to eleven months' gross salary.

p. 5

Legal principles established

#
  • Under section 49(1)(c) of the Employment Act, 2007, compensation for unfair termination is awarded at the discretion of the court or labour officer and depends on the circumstances of the case
  • In assessing compensation under section 49(1)(c), the court applies the principle of a fair go all round, balancing the interests of the employer and the employee and taking all circumstances of the termination into account
  • The purpose of employment compensation is not to unjustly enrich employees but to redress their economic injuries in a proportionate way
  • The consent settlement rate between the parties can guide the court's quantification of compensation for unfair termination

Court orders

#
  1. 1.Consent judgment entered for the claimant for Kshs.1,967,890.00 in respect of items 1, 2, 3 and 4 of the statement of claim
  2. 2.The amount of Kshs.1,967,890.00 subjected to statutory deductions as provided by law
  3. 3.The amount of Kshs.1,549,519.00 reduced by Kshs.72,220.00 being the claimant's liability to the respondent, leaving a net amount of Kshs.1,477,299.00 payable to the claimant within thirty days
  4. 4.Compensation awarded for wrongful and unfair termination of eleven (11) months' gross salary, i.e. 11 months x Ksh.193,856.35 = Kshs.2,132,419.85
  5. 5.Reinstatement refused, not having been prayed for or made an issue for determination
  6. 6.Costs of the suit awarded to the claimant

Authorities

#

Legislation

  • Employment Act, 2007section 49(1)(c)
  • Employment Act, 2007section 41
  • Labour Institutions Actsection 15(c)
  • Industrial Court Act, 2011section 31

Cases cited (2)

  • David Mwangi Gioko and 51 others vs Nairobi City Water & Sewerage Company Limited
    Industrial Court cause No. 1722 of 2011
  • Maria Kagai Ligaga vs Coca Cola East and Central Africa Limited
    Industrial Cause No. 611(N) of 2009
Jurisdiction invoked
Employment Act, 2007 and Industrial Court Act, 2011 (dispute referred under memorandum of claim dated 23rd May, 2012)

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.

Cite this brief

#

Cite this brief

Caselaw, "Mathew Nyanjong v East African Portland Cement Co. Ltd [2013] KEELRC 188 (KLR)", Case Analysis (2013). Cause No. 869 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/188/eng@2013-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.