Kenatco Taxis Limited v Evans Adekhera Liuva [2021] KEELRC 2030 (KLR)
The bottom line
#A Kenyan court confirmed a 12-month salary award for unfair dismissal but cancelled service pay because the employee contributed to NSSF.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the disciplinary process
The exclusion of the complainant (RW1) from the disciplinary proceedings where her account conflicted with the employee's was fatal; no valid reason for termination was established
The charge originated from RW1, the only customer witness besides the Respondent and the third party driver. Her account diametrically differed from the Respondent's. Without her testimony the panel could not make a fair finding, and the employee had no opportunity to cross-examine his accuser. Section 41 fairness applies regardless of whether the employee objected at the proceedings.
Level of compensatory award under Section 49
The maximum award of 12 months' salary was justified for a long-serving employee of 10 years with no prior disciplinary issues
Section 49 confers judicial discretion to award what is fair and just in the circumstances. The appellate court will not interfere with a discretionary award absent a failure to consider relevant matters. The Respondent's long service and clean disciplinary record justified the maximum award, which was confirmed along with one month's notice pay.
Entitlement to service pay
Service pay award set aside because the Respondent was an NSSF contributor and no evidence showed non-remittance of NSSF dues
Section 35(6)(d) of the Employment Act excludes contributing NSSF members from claiming service pay. Absent evidence that the employer failed to remit the Respondent's NSSF dues, the trial court had no basis to allow the service pay claim. The appeal succeeded only on this head.
Legal principles established
#- On a first appeal, the court must reconsider and re-evaluate the evidence and draw its own conclusions, making allowance for not having seen or heard the witnesses
- Procedural fairness under Section 41 of the Employment Act requires an employee to have an opportunity to test the veracity of accusations, and this requirement does not depend on the employee raising an objection
- Employees contributing to NSSF are excluded from claiming service pay under Section 35(6)(d) of the Employment Act
- An appellate court will not interfere with the exercise of discretion by a trial court unless it is shown the trial court failed to direct itself properly in law and fact
Court orders
#- 1.Appeal succeeds only to the extent that the award for service pay is set aside
- 2.Awards for 12 months' salary compensation and 1 month's salary in lieu of notice confirmed
- 3.Appellant to pay 75% of the costs of the appeal and those in the court below
- On appeal from
- Chief Magistrate's Court (ELRC), Mombasa
- Not stated in judgment
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (reconsideration and re-evaluation of evidence on a first appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenatco Taxis Limited v Evans Adekhera Liuva [2021] KEELRC 2030 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2030/eng@2021-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.