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ELRCPartially AllowedELR Appeal arising from Mombasa CMC ELR Case No 682 of 2019· [2023] KEELRC 224 (KLR)

Ngongodi v Yellowline Logistics Limited (Employment and Labour Relations Appeal E016 of 2022) [2023] KEELRC 224 (KLR)

Employment and Labour Relations Court
26 January 2023
2,368 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan employee with less than 13 months' service cannot claim compensation for unfair termination, though notice pay and leave were still awarded.

What this practically means

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Executive summary

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The Appellant, a heavy commercial driver formerly employed by the Respondent, appealed to the Employment and Labour Relations Court at Mombasa against the trial magistrate's judgment in Mombasa CMC ELR Case No 682 of 2019, which had awarded him only Kshs 34,162 for days worked in March 2019 and pro-rata leave and dismissed the rest of his claim. He sought notice pay, unpaid leave, overtime, unpaid salaries for April and July 2018, compensation for unfair termination, underpayment/house allowance and public holiday pay. On a first appeal, the court applied the settled duty to rehear the case on both fact and law. It held that although the Respondent may not have followed Section 41 of the Employment Act in terminating the Appellant, Section 45(3) bars an employee with less than thirteen months' continuous service from claiming unfair termination or compensation. The court found the Appellant earned Kshs 34,416 gross inclusive of house allowance per the Respondent's payroll, defeating the house allowance and underpayment claims, and declined the overtime, public holiday and unpaid salary claims as unparticularised and unproved, stressing that such claims are special damages that must be specifically pleaded and proved. It awarded one month's salary in lieu of notice (Kshs 34,416) and accrued leave (Kshs 22,083.6), totaling Kshs 56,499.6 subject to statutory deductions, ordered issuance of a certificate of service within thirty days, set aside the trial judgment, and awarded the Appellant costs of the appeal and the suit below with interest at Court rates.

Key legal issues

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01

Whether the Appellant could claim compensation for unfair termination despite serving less than thirteen months

Holding

No; Section 45(3) of the Employment Act bars such a claim

Reasoning

Both parties agreed the Appellant worked from mid-2018 to March 13, 2019, a period of about eleven months. Section 45(3) restricts the right to complain of unfair termination to employees continuously employed for not less than thirteen months immediately before termination. Although the Respondent may not have followed Section 41 procedure, the Appellant is barred from alleging unfair termination and seeking compensation.

p. 4
02

Whether the Appellant was entitled to notice pay, accrued leave and a certificate of service

Holding

Yes; notice pay of Kshs 34,416, accrued leave of Kshs 22,083.6 and a certificate of service awarded

Reasoning

The Appellant was on a monthly term contract and entitled to one month's notice or salary in lieu. The Respondent, custodian of leave records under Section 74(f), produced no leave records, and the Appellant worked over eleven months, accruing 19.25 leave days. Section 51(1) requires a certificate of service upon termination for employment exceeding four consecutive weeks.

p. 4
03

Whether claims for overtime, unpaid salaries, underpayment, house allowance and public holidays were proved

Holding

All declined for want of pleading and proof

Reasoning

Special damages must be specifically pleaded and proved. The Respondent's payroll showed the Appellant earned Kshs 34,416 inclusive of house allowance, defeating the house allowance and underpayment claims. The overtime and public holiday claims were global figures without particulars, and the unpaid salaries claim was not raised at trial.

p. 5

Legal principles established

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  • An employee with less than thirteen months' continuous employment cannot complain of or claim compensation for unfair termination under Section 45(3) of the Employment Act.
  • Unpaid salaries, allowances and overtime are special damages that must be specifically pleaded and proved.
  • Global claims for overtime and public holidays without particulars are a frivolous practice that must stop; the burden of proving excess hours rests with the employee.
  • A first appellate court has jurisdiction to rehear the whole case on questions of fact and law.

Court orders

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  1. 1.Trial Court's judgment delivered on February 8, 2022 set aside and substituted with Judgment for the Appellant in the sum of Kshs 56,499.6 (one month salary in lieu of notice Kshs 34,416 and accrued leave days Kshs 22,083.6)
  2. 2.Awarded sum subject to statutory deductions pursuant to Section 49(2) of the Employment Act
  3. 3.Respondent to issue the Appellant with a certificate of service within thirty days of the judgment
  4. 4.Appellant awarded costs of the appeal and of the suit in the Court below, with interest at Court rates

Authorities

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Legislation

  • Employment ActSection 45(3)
  • Employment ActSection 41
  • Employment ActSection 28(1)
  • Employment ActSection 74(f)
  • Employment ActSection 51(1)
  • Employment ActSection 49(2)

Cases cited (4)

  • Mursal & Another vs Manese
    [2022] eKLR
  • Selle & Another -vs- Associates Motor Boat Co Ltd & Another
    [1968] EA 123
  • Peters -vs- Sunday Post LTD
    [1958] EA page 424
  • Rogoli Ole Manadiegi -vs- General Cargo Services Limited
    [2016] eKLR
On appeal from
Chief Magistrate's Court, Mombasa (Employment and Labour Relations)
CMC ELR Case No 682 of 2019
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment in the Employment and Labour Relations 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, "Ngongodi v Yellowline Logistics Limited (Employment and Labour Relations Appeal E016 of 2022) [2023] KEELRC 224 (KLR)", Case Analysis (2023). ELR Appeal arising from Mombasa CMC ELR Case No 682 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/224/eng@2023-01-26

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