Ngongodi v Yellowline Logistics Limited (Employment and Labour Relations Appeal E016 of 2022) [2023] KEELRC 224 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Appellant could claim compensation for unfair termination despite serving less than thirteen months
No; Section 45(3) of the Employment Act bars such a claim
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.
Whether the Appellant was entitled to notice pay, accrued leave and a certificate of service
Yes; notice pay of Kshs 34,416, accrued leave of Kshs 22,083.6 and a certificate of service awarded
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.
Whether claims for overtime, unpaid salaries, underpayment, house allowance and public holidays were proved
All declined for want of pleading and proof
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.
Legal principles established
#- 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
#- 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.Awarded sum subject to statutory deductions pursuant to Section 49(2) of the Employment Act
- 3.Respondent to issue the Appellant with a certificate of service within thirty days of the judgment
- 4.Appellant awarded costs of the appeal and of the suit in the Court below, with interest at Court rates
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.