Uchumi Mattress Ltd v John Karuga Waruingi & another [2018] KEELRC 27 (KLR)
The bottom line
#A Kenyan employment appeal court struck out a large damages award because the trial judge used the wrong Employment Act version, but kept notice pay for the workers.
What this practically means
#Executive summary
#Key legal issues
#Applicable statute to the termination claim
The applicable law was the repealed Employment Act Cap 226, not the Employment Act, 2007; the trial court's reliance on section 49 of the 2007 Act was an error
The cause of action arose on 10th May 2004 (or 2000 as pleaded in the lower court claim), before the Employment Act, 2007 came into force. The compensation regime under section 49 of the 2007 Act applies only to claims premised on unfair termination found under that Act. Applying the wrong statute led to a misapplication of the law and a wrong finding, justifying appellate interference.
Entitlement to general damages for unlawful termination
The award of general damages was not justified; the respondents pleaded unlawful termination but did not plead or establish the basis of the unlawful acts
The pleadings and evidence were left bare as to the nature of the alleged unlawful acts. Under the repealed Employment Act Cap 226, a claim for breach of contractual terms ought to be framed as wrongful termination. Awarding compensation under section 49 of the 2007 Act without laying the foundation for unfair dismissal was overreaching and could not find justification in law.
Entitlement to notice pay
Under the repealed Employment Act Cap 226, the employer could dismiss subject to issuance of notice or payment in lieu; the respondents, whose dismissal the appellant sanctioned following the welfare kitty resolution, were entitled to notice pay
The appellant's own evidence confirmed it sanctioned the welfare group's resolution that the respondents produce the missing money or quit employment. Whether termination is written or verbal, due notice or payment in lieu was required under Cap 226. The notice pay was computed at the gross monthly wages pleaded in the defence counter-claim, though the trial award was based on a wrong computation.
First appellate court's duty on findings of fact
The first appellate court must re-evaluate the evidence but interferes only where a finding is based on no evidence, misapprehension of evidence, or wrong principles
The court cited Mary Njoki v John Kinyanjui Mutheru and Dikianga Distributors for the standard of interference. The trial court's application of an inapplicable statute constituted acting on wrong principles, warranting intervention on the damages award while upholding the notice pay entitlement.
Legal principles established
#- On a first appeal the court has a duty to re-evaluate the evidence, mindful that the trial court observed witness demeanour, and will interfere with findings of fact based on no evidence, misapprehension of evidence, or wrong principles
- A claim must be determined under the law in force at the time the cause of action arose; the Employment Act, 2007 did not apply to a termination occurring before its commencement
- Compensation under section 49 of the Employment Act, 2007 is premised on a finding of unfair termination or unfair dismissal, not unlawful termination as pleaded
- A party who pleads unlawful termination bears the duty to plead and demonstrate the unlawful acts or violations relied upon
Court orders
#- 1.The appeal partly succeeds
- 2.The respondents are entitled to notice pay at Kshs. 12,653.00 and 15,889.00 respectively for each respondent
- 3.Each party to bear own costs for the appeal
- On appeal from
- Chief Magistrates Court, Nakuru
- CMCC No. 1562 of 2004 (also referred to as Civil Suit No. 1652 of 2004)
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrates Court appeal in employment matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Uchumi Mattress Ltd v John Karuga Waruingi & another [2018] KEELRC 27 (KLR)", Case Analysis (2018). Civil Appeal No. 19 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/27/eng@2018-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.