Boom A. Bosire v Gusii Mwalimu Co-operative Savings and Credit Society Limited [2018] KEELRC 200 (KLR)
The bottom line
#Kenya's Employment Court upgraded a wrongfully retrenched employee's payout to three months' notice pay and full benefits, but refused general damages under the old law.
What this practically means
#Executive summary
#Key legal issues
#Salary in lieu of notice upon retrenchment
The Magistrate had no basis to award only one month's salary in lieu of notice where the Respondent had placed the Appellant on three months' paid leave to December 2004; the Respondent must pay three months' salary in lieu of notice if unpaid
The retrenchment letter gave three months' notice effective December 2004, during which the Appellant was to remain on leave. The court found the trial court's award of one month in lieu of notice unjustified and directed payment of three months' salary computed at the Assistant Senior Book Keeper scale, the position the Appellant ought to have been graded and paid from confirmation.
Wrongful suspension and underpayment
The findings of the lower court that the suspension was wrongful, the retrenchment was in bad faith, and that nepotism and discrimination were practised were upheld; the appeal attacked only the remedies
The Magistrate correctly found the suspension wrongful and the suspension and retrenchment clouded in bad faith, with DW 1's daughter subsequently replacing the Appellant. Management practised nepotism and discrimination contrary to the terms and conditions of service in Exhibit 4. The Appellant was confirmed as Assistant Senior Book Keeper without a grade adjustment or higher salary.
Availability of general damages for breach of employment contract before the Employment Act, 2007
The Magistrate was correct in not awarding general damages because under the pre-2007 law and Githinji v Mumias Sugar Co. Limited, general damages were not available for breach of a contract of employment
The retrenchment was governed by section 40A of the erstwhile Employment Act. Relying on the binding Court of Appeal decision in Githinji v Mumias Sugar Co. Limited, the court held that before the 2007 Act the remedy for breach of an employment contract was confined to the contract itself and the then-existing statute, so no general damages lay despite the bad faith findings.
Legal principles established
#- Under the pre-2007 Employment Act regime, general damages were not recoverable for breach of a contract of employment; the remedy was restricted to what was provided in the contract itself and the then-existing Employment Act
- Section 40A of the erstwhile Employment Act obliged an employer to notify the labour office and the targeted employee at least one month before retrenchment and to discuss the retrenchment with the employee and provide justification
Court orders
#- 1.The Appellant is to be paid by the Respondent three months salary calculated at the appropriate scale of Assistant Senior Book Keeper in lieu of notice, if it did not pay salary up to December 2004
- 2.The Respondent to pay salary at the scale of Assistant Senior Book Keeper for the period the Appellant was under suspension
- 3.The Respondent to pay under payments set out and proved by the Appellant from the date of confirmation to the position of Assistant Senior Book Keeper to December 2004
- 4.The Respondent to confirm payment of all terminal benefits set out in the letter of retrenchment including salary to December 2004, payment in lieu of leave for the year 2004 and severance pay at one month's salary for each completed year of service, computed on the Assistant Senior Book Keeper scale to be confirmed by the Respondent within 14 days, failing which the monthly payment of Kshs.49,930 to apply in computation
- 5.Respondent to pay costs of the Appeal and the trial in court below
- On appeal from
- Chief Magistrate's Court, Kisii
- Not stated in judgment
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court (statutory appeal from the lower court; no specific provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boom A. Bosire v Gusii Mwalimu Co-operative Savings and Credit Society Limited [2018] KEELRC 200 (KLR)", Case Analysis (2018). Appeal No 7 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/200/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.