Kishen Holdings Limited v Nyang’au (Cause E012 of 2021) [2023] KEELRC 566 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Interference with the trial magistrate's discretionary compensatory award
The 12-month maximum award was reduced to 8 months' salary because the respondent had served less than 10 years and no special circumstances justified the maximum.
Parliament capped compensatory awards at twelve months' salary and listed factors in section 49(4). Following Kenfreight, the discretion must be guided by those parameters. The trial court gave no reason for the maximum award; the appellant's length of service being under ten years and absence of special circumstances justified reduction to eight months.
Entitlement to service pay
The service pay award was removed because the respondent was an NSSF contributor.
Section 35(6) of the Employment Act excludes service pay for employees who are members of NSSF. Since the respondent was a contributing member, the trial magistrate's award of Kshs 110,578 in service pay was not warranted in law and was set aside.
Entitlement to leave pay
The leave pay award was set aside as leave had been commuted for cash.
The appellant produced employment records demonstrating that the respondent's leave was commuted for cash on accrual basis each year. On that evidence, the trial magistrate's award of five years' unpaid leave at Kshs 111,155 was made in error and could not stand.
Legal principles established
#- A first appellate court must reconsider and re-evaluate the evidence and draw its own conclusions, bearing in mind it did not see or hear the witnesses.
- An appellate court will not interfere with a discretionary award unless the judge misdirected himself in law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant ones, or the decision is plainly wrong.
- A compensatory award for unfair termination under section 49 of the Employment Act is a matter of judicial discretion guided by the parameters in section 49(4), and may range from one to twelve months' salary.
- An employee who is a contributing member of NSSF is not entitled to service pay under section 35(6) of the Employment Act.
Court orders
#- 1.The award by the learned trial magistrate is set aside and replaced with 8 months' salary in compensation (Kshs 177,848) and 1 month's salary in lieu of notice (Kshs 22,231), total Kshs 200,079
- 2.Each party will bear their own costs
- On appeal from
- Magistrates' Court
- Not stated (statement of claim dated May 22, 2019)
- Jurisdiction invoked
- First appellate jurisdiction over the magistrates' court in an employment dispute under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kishen Holdings Limited v Nyang’au (Cause E012 of 2021) [2023] KEELRC 566 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/566/eng@2023-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.