Ondari v Danros Kenya Limited (Appeal 12 [B] of 2020) [2022] KEELRC 1569 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the trial court's finding of unlawful termination should stand
The finding that termination was unlawful for non-compliance with Section 40 of the Employment Act was upheld
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.
Whether the quantum of compensation for unfair termination should be enhanced
Compensation was enhanced from two months' to nine months' salary (ksh.216,000)
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.
Whether a purported signed acknowledgement of dues binds the employee
The document titled 'Redundancy Pay' was disregarded because the Respondent failed to demonstrate the employee understood it, and its provenance was suspicious
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.
Whether the claim for public holidays ought to succeed
The dismissal of the public holidays claim was affirmed for want of pleading and proof
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.
Legal principles established
#- 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
#- 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.The Appellant is awarded costs of this appeal and interest, and costs of proceedings in the Court below
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.