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ELRCPartially AllowedNot stated in the judgment· [2023] KEELRC 562 (KLR)

Mayfair Holdings Ltd v Okutoto (Appeal E016 of 2021) [2023] KEELRC 562 (KLR)

Employment and Labour Relations Court
2 March 2023
CBChristine N. Baari
2,753 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 confirmed the worker was unfairly sent away without a hearing, but cut his compensation and cancelled claims he couldn't prove.

What this practically means

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Executive summary

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This is a first appeal from a magistrate's court judgment of 6th April 2021 which had found the Respondent's termination unfair and awarded him one month's salary in lieu of notice, accrued leave, payment for 124 days worked without off days, public holidays worked, 12 months' salary as compensation, a certificate of service, costs and interest. The Appellant employer appealed, contending the magistrate misinterpreted the evidence and that the Respondent deserted duty, making disciplinary proceedings impossible. Guided by the principles for first appellate courts, Judge Christine N. Baari re-evaluated the record and found email exchanges and the Appellant's own witness's cross-examination showed the Respondent was sent away by his supervisor and told not to return, at the very time he was alleged to have absconded, and that he was never given a hearing. The finding of unfair termination was therefore upheld. However, the court held that a finding of unfair termination does not automatically validate every relief claimed; each must be specifically proved. The award for accrued leave, off days and public holidays was set aside because the Respondent led no evidence and had signed an unchallenged discharge acknowledging final dues in full settlement. The award of 12 months' compensation was set aside as unjustified and, considering the Respondent's record of misconduct and contribution to the termination, substituted with eight months' salary (Kshs. 199,920/-). Costs and interest as awarded by the trial court were left undisturbed, and each party was ordered to bear its own costs of the appeal. The appeal partially succeeded.

Key legal issues

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01

Whether the termination of the Respondent was unfair

Holding

The termination was unfair; the Respondent was sent away by the supervisor and denied a hearing, contrary to Sections 41, 43, 45 and 47(5) of the Employment Act

Reasoning

The court re-evaluated the record and found email exchanges showing the supervisor sent the Respondent away and the General Manager instructed that he not be allowed to return, at the very time he was said to have absconded. The Appellant's own witness confirmed in cross-examination that the Respondent was sent away and not given a hearing. The desertion narrative therefore collapsed and the trial court's finding on unfair termination was upheld.

p. 4
02

Whether the Trial Court's awards for accrued leave, ofi days and public holidays were justified

Holding

Set aside; the Respondent bore the burden of proof and failed to discharge it, and an unchallenged signed discharge letter in full settlement extinguished those claims

Reasoning

The Respondent led no evidence of the specific days worked, holidays worked or leave untaken. The record contained a letter acknowledging Kshs. 23,895.39 as overtime, ofi days and annual leave in full settlement, with a matching cheque, which the Respondent never challenged. Applying the discharge voucher jurisprudence, the court concluded the Appellant no longer owed the Respondent on those heads and set the award aside.

p. 4
03

What compensation for unfair termination was appropriate

Holding

Eight months' salary (Kshs. 199,920/-) substituted for the 12 months awarded, given the Respondent's poor record of service and contribution to the termination

Reasoning

The record showed several show cause letters for misconduct to which the Respondent responded, indicating a poor service record that largely contributed to the termination. Following Kenya Broadcasting Corporation v Geoffrey Wakio, maximum awards must be justified with reasons; no justification was given for the blanket 12-month award. Weighing the Respondent's contribution, the court substituted an award of eight months' salary.

p. 6

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence on record and determine whether the trial court's conclusions should stand
  • An employer alleging desertion must demonstrate efforts made to reach the employee; it is not enough to merely assert desertion
  • Being found unfairly terminated does not entitle an employee to all reliefs claimed; each claim must be specifically proved
  • Whether a discharge voucher bars further claims depends on the circumstances of each case and whether it was voluntarily executed
  • An award of the maximum 12 months' compensation must be justified on sound judicial principles

Court orders

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  1. 1.The Trial Court's finding that the Respondent was unfairly terminated is upheld
  2. 2.The award of one month's salary in lieu of termination notice is upheld
  3. 3.The Trial Court's award in respect of accrued Leave, Payment of 124 Days Worked Without Ofi, Payment for Public Holidays Worked is set aside
  4. 4.The Trial Court's award of 12 months' salary as compensation for unfair termination is set aside and substituted with Eight (8) months' salary as compensation for unfair termination at Kshs. 199,920/-
  5. 5.Each party bears their own costs of the appeal
  6. 6.The award of costs and interest by the Trial Court is left undisturbed

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSections 41, 43, 45 and 47(5)
  • Employment Act, 2007Sections 41, 43, 45 and 47(5)

Cases cited (11)

  • United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd
    [1985] E.A
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • William Gituma v RAA Limited
    [2020] eKLR
  • Ronald Nyambu Daudi v Tornado Carriers Limited
    [2019] eKLR
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2013] eKLR
  • Mary Mutanu Mwendwa v Ayuda
    [2013] eKLR
  • Trinity Prime Investment Limited v Lion of Kenya Insurance Company Limited
    [2015] eKLR
  • Coastal Bottlers Limited v Kimathi Mithika
    [2018] eKLR
  • Krystalline Salt Limited v Kwekwe Mwakele & 67 others
    [2017] Eklr
  • Kenya Ports Authority v Festus Kipkorir Kiprotich
    [2014] eKLR
  • Kenya Broadcasting Corporation v Geofirey Wakio
    [2019] eKLR
On appeal from
Trial Court (Learned Magistrate's Court)
Not stated
Jurisdiction invoked
First appellate jurisdiction over the Trial Court's judgment (appeal lodged 5th May, 2021)

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, "Mayfair Holdings Ltd v Okutoto (Appeal E016 of 2021) [2023] KEELRC 562 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/562/eng@2023-03-02

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