Lupra Manpower and Human Resource Services Ltd v Orina & another (Appeal 3 of 2022) [2023] KEELRC 885 (KLR)
The bottom line
#Kenya's Employment Court slashed a worker's award from Kshs 483,711 to Kshs 67,479, confirming severance pay is only for redundancy and future 'lost income' claims fail.
What this practically means
#Executive summary
#Key legal issues
#Notice pay
Award of two months' notice pay set aside; the statutory minimum of one month applies where the employee is paid monthly
The contract provided 7 days' notice, but section 35(1)(c) of the Employment Act prescribes a minimum of 28 days for monthly-paid employees. The trial magistrate's award of two months had no anchor in the contract or the law; the court substituted one month's salary in lieu of notice.
Lost income to end of contract
Award set aside as unanchored in law or contract
The contract did not provide for wages on premature separation and no basis for legitimate expectation was laid. The court endorsed the Court of Appeal in D.K. Njagi Marete and the Supreme Court of Uganda in Bank of Uganda v Tinkamanyire, holding such anticipatory benefits speculative and unattainable in law.
Severance and service pay
Both awards set aside
The termination was a summary dismissal, not a redundancy, so section 40 severance pay was inapplicable. Pay slips showed NSSF contributions, and under section 35(5) & (6) an NSSF contributor is not entitled to service pay; no member statement proved non-remittance.
Compensation for unfair termination
Maximum compensation reduced to the equivalent of two months' gross wages (Kshs 50,088/-)
The finding of unfair termination was not challenged. Applying section 49(4) factors, the about two years of service and the employer's failure to afford an oral hearing under section 41(2) made maximum compensation unfair; two months' gross wages were appropriate.
October 2019 wages
Award set aside
A pay slip showed the respondent was paid Kshs 12,334/- for October 2019, and he never testified that he was unpaid for that month, so the trial court erred in allowing the head.
Legal principles established
#- Where an employee is on a monthly wage, a contractual notice period shorter than 28 days is invalidated by section 35(1)(c) of the Employment Act, 2007
- Claims for anticipatory benefits/income to the end of a prematurely terminated contract are not anchored in law
- Severance pay is payable only in redundancy under section 40 of the Employment Act
- On a first appeal, the court re-evaluates the evidence and makes its own findings while according deference to the trial court's advantage of seeing witnesses
Court orders
#- 1.Setting aside and vacating the awards of 2 months' salary in lieu of notice, severance pay, lost income, compensation of Kshs 208,692/-, October 2019 wages and service pay
- 2.Substituting awards: pay in lieu of notice Kshs 17,391/- and compensation Kshs 50,088/-, totalling Kshs 67,479/-, payable by the appellant to the 1st respondent
- 3.Appellant to have costs of the appeal; 1st respondent to have costs before the trial court
- On appeal from
- Senior Principal Magistrates Court, Kisii
- not stated
- Jurisdiction invoked
- First appeal from the Senior Principal Magistrates Court under employment law (statutory appeal jurisdiction; specific provision not stated in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lupra Manpower and Human Resource Services Ltd v Orina & another (Appeal 3 of 2022) [2023] KEELRC 885 (KLR)", Case Analysis (2023). Appeal No 3 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/885/eng@2023-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.