Anne Kirumba Riungu v Telkom Kenya Limited [2014] KEELRC 887 (KLR)
The bottom line
#A Kenyan employer lost its bid to delay paying an unfair termination award because its planned appeal ignored the key finding that fair procedure was missing.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to annex a draft memorandum of appeal is fatal to a stay application
Not fatal where the grounds of the intended appeal are clearly set out in the supporting affidavit
The court noted that although the respondent had not filed grounds of appeal, paragraph 7 of the supporting affidavit of Caroline Ndindi clearly articulated the three grounds the intended appeal would raise, sufficient to assess arguability. The court then assessed those grounds against the judgment and found them without merit.
Whether the intended appeal was arguable
The appeal was not arguable because the application ignored the finding that the termination was unfair for failure to prove fair procedure
The judgment had found a valid reason existed but that fair procedure was not proved, making the termination unfair under Section 45(1) and (2) of the Employment Act. Once unfairness is found, Section 49(1) as read with Section 50 entitles the employee to notice pay and accrued contractual entitlements including gratuity. The application addressed only validity of reason, ignoring the procedural limb, so the appeal had no chance of success.
Whether the award of gratuity rewrote the employment contract
No; gratuity was a contractual entitlement under clauses 15 and 18 of the contract, payable once termination was found unfair
Clause 15 provided for gratuity of 31% of total salary on completion of contract, and clause 18 dealt with termination by notice. Read with Section 49(1)(a) and (b) of the Employment Act, once the termination was found unfair the claimant was automatically entitled to gratuity up to the date of termination and notice. The court would only have declined compensation for unfair termination due to the claimant's contribution to the circumstances of termination.
Legal principles established
#- Stay of execution pending appeal requires an arguable appeal with a reasonable chance of success, plus preservation of the subject matter / avoidance of irreparable loss or the appeal being rendered nugatory
- For a termination to be valid there must be both valid reason and fair procedure; if either is missing the termination is unfair under Section 45(1) and (2) of the Employment Act
- Once a termination is found unfair, the employee is automatically entitled to contractual notice and gratuity up to the date of termination
Court orders
#- 1.The application dated 1st July 2013 is dismissed with costs
- 2.The applicant may apply for stay at the Court of Appeal if not satisfied with this ruling
- Jurisdiction invoked
- Inherent jurisdiction to grant stay of execution pending appeal (intended appeal to the Court of Appeal against judgment of 5th June 2013)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anne Kirumba Riungu v Telkom Kenya Limited [2014] KEELRC 887 (KLR)", Case Analysis (2014). Not stated in the extract (application arising from Employment and Labour Relations Court cause, judgment of 5th June 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/887/eng@2014-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.