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ELRCPartially AllowedNot stated in judgment· [2021] KEELRC 2030 (KLR)

Kenatco Taxis Limited v Evans Adekhera Liuva [2021] KEELRC 2030 (KLR)

Employment and Labour Relations Court
4 March 2021
1,526 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Respondent, employed by the Appellant taxi business from 2008 and risen to Station Controller, was summarily dismissed after the Appellant's Customer Relations Manager reported that he had diverted her to a third-party taxi at Moi International Airport, Mombasa. The trial court (Hon M.L Nabibya, PM) found the termination unfair and awarded one month's notice pay, ten years' service pay, and 12 months' salary compensation. On appeal, Linnet Ndolo J, applying the first-appeal retrial standard in Selle v Associated Motor Boat Company Ltd, considered three issues: process of termination, level of compensation, and service pay. The court upheld the finding of unfair termination: the disciplinary panel proceeded without the complainant (RW1), whose account diametrically contradicted the employee's, denying him the opportunity to test the accusations as Section 41 of the Employment Act requires - a requirement that survives the employee's failure to object. The 12-month maximum compensation under Section 49 was confirmed, the Respondent being a long-serving employee with a clean disciplinary record; the appellate court would not disturb the trial court's discretion per Printing Industries v Bank of Baroda. However, the service pay award was set aside because under Section 35(6)(d) of the Employment Act, contributing NSSF members cannot claim service pay, and there was no evidence of non-remittance of NSSF dues. The appeal accordingly succeeded only in part, with the Appellant ordered to pay 75% of the costs of the appeal and the court below.

Key legal issues

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01

Procedural fairness of the disciplinary process

Holding

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

Reasoning

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.

p. 2
02

Level of compensatory award under Section 49

Holding

The maximum award of 12 months' salary was justified for a long-serving employee of 10 years with no prior disciplinary issues

Reasoning

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.

p. 3
03

Entitlement to service pay

Holding

Service pay award set aside because the Respondent was an NSSF contributor and no evidence showed non-remittance of NSSF dues

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Appeal succeeds only to the extent that the award for service pay is set aside
  2. 2.Awards for 12 months' salary compensation and 1 month's salary in lieu of notice confirmed
  3. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.