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ELRCPartially AllowedAppeal 12 [B] of 2020· [2022] KEELRC 1569 (KLR)

Ondari v Danros Kenya Limited (Appeal 12 [B] of 2020) [2022] KEELRC 1569 (KLR)

Employment and Labour Relations Court
16 June 2022
2,283 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court more than quadrupled a redundancy compensation award, ruling employers must prove employees understood any discharge documents they signed.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa against the judgment of the trial Magistrate dated 5th May 2020 in Mombasa ELR Case No. 304 of 2018, in which Elnah Moraa Ondari sued Danro [K] Limited for wrongful termination of employment. The Appellant, employed as a clerk from June 2014 at a monthly salary of ksh.24,000, was terminated on grounds of redundancy. The trial court found the termination unlawful for non-compliance with Section 40 of the Employment Act and awarded two months' salary as compensation, dismissing claims for service pay, unpaid leave, public holidays and overtime. On appeal, the Appellant challenged the quantum only, seeking maximum compensation for unfair termination and payment for public holidays. Agnes Kitiku Nzei, J, upheld the finding of unlawful termination and, exercising first-appeal duties of re-evaluating the evidence, enhanced compensation to nine months' salary (ksh.216,000). The court disregarded the Respondent's 'Redundancy Pay' acknowledgement document, which recorded gross dues of ksh.169,965.50 but against which only ksh.67,688 was actually paid, applying the principle that an employer must prove the employee understood any discharge document. The claims for service pay and leave pay remained dismissed as paid, and the public holidays claim failed for want of particulars and evidence. The appeal partly succeeded, with the award of two months' salary set aside and substituted with ksh.216,000, plus costs of the appeal and the court below with interest.

Key legal issues

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01

Whether the trial court's finding of unlawful termination should stand

Holding

The finding that termination was unlawful for non-compliance with Section 40 of the Employment Act was upheld

Reasoning

The trial court found the termination unlawful because the Respondent failed to comply with the mandatory requirements of Section 40 of the Employment Act, including notification of the Labour Officer and indication of redundancy criteria. The Appellate court expressly agreed with and upheld that finding, leaving the conclusion of unfair termination undisturbed.

p. 4
02

Whether the quantum of compensation for unfair termination should be enhanced

Holding

Compensation was enhanced from two months' to nine months' salary (ksh.216,000)

Reasoning

Taking into account the circumstances in which the Appellant's employment was terminated - including the Respondent's failure to follow Section 40 and its procurement of a purported acknowledgement of dues it did not pay in full - the court found two months' salary inadequate and substituted an award of nine months' salary, ksh.24,000 x 9 = ksh.216,000.

p. 5
03

Whether a purported signed acknowledgement of dues binds the employee

Holding

The document titled 'Redundancy Pay' was disregarded because the Respondent failed to demonstrate the employee understood it, and its provenance was suspicious

Reasoning

The document was undated, bore inconsistent signing dates, recorded total dues of ksh.169,965.50 yet the Appellant was only paid ksh.67,688, which the Respondent did not controvert. Following Bernard Momanyi Ongori v G4S Security Services [K] Limited, an employer must prove the employee understood a discharge voucher; failing that, the court disregards the document.

p. 4
04

Whether the claim for public holidays ought to succeed

Holding

The dismissal of the public holidays claim was affirmed for want of pleading and proof

Reasoning

The Appellant made only a general claim for payment for public holidays without pleading particulars of the specific holidays on which she allegedly worked and without adducing evidence of having worked on such holidays. General claims of this nature are insufficient to discharge the burden of proof.

p. 5

Legal principles established

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  • An employer must demonstrate that an employee who signed a discharge voucher or acknowledgement of dues understood what he or she was signing and that the document was in a language the employee understood; otherwise the court will disregard the document
  • Failure to comply with the mandatory requirements of Section 40 of the Employment Act renders termination of employment unlawful
  • On a first appeal the court must reconsider and evaluate the evidence itself while making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The trial Court's award of two months' salary in compensation for unfair termination of employment is set aside and substituted with judgment in favour of the Appellant for ksh.216,000 being the equivalent of nine months' salary as compensation for unfair termination of employment
  2. 2.The Appellant is awarded costs of this appeal and interest, and costs of proceedings in the Court below

Authorities

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Legislation

  • Employment Act, 2007Section 40
  • Employment Act, 2007Section 9(2)
  • Employment Act, 2007Section 41(1)

Cases cited (2)

  • Bernard Momanyi Ongori v G4s Security Services [k] Limited (formerly known as Securior Services)
    [2022] eKLR
  • Kenya Ports Authority – v Kuston [Kenya] Limited
    [2009] 2EA 212
On appeal from
Magistrates' Court (Mombasa ELR Case No. 304 of 2018)
Mombasa ELR Case No. 304 of 2018
Jurisdiction invoked
First appeal from the trial court's judgment in an employment claim under the Employment Act, 2007

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, "Ondari v Danros Kenya Limited (Appeal 12 [B] of 2020) [2022] KEELRC 1569 (KLR)", Case Analysis (2022). Appeal 12 [B] of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1569/eng@2022-06-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.