Lupra Manpower and Human Resource Services Ltd v Mogeni & another (Appeal 2 of 2022) [2023] KEELRC 889 (KLR)
The bottom line
#Kenya's Employment Court cut a worker's award from Kshs 424,808 to Kshs 80,572, confirming that employees cannot claim future wages for a contract cut short.
What this practically means
#Executive summary
#Key legal issues
#Notice pay for a monthly-paid employee
The 7-day contractual notice was invalid; the proper award is 1 month's salary in lieu of notice, not 2 months
Section 35(1)(c) of the Employment Act prescribes a minimum of 28 days' notice for monthly-paid employees. The contract's 7-day notice clause was thereby invalidated. The trial magistrate's award of two months' salary had no anchor in the contract or the statute and was reduced to one month (Kshs 14,388/-).
Lost income to end of contract
Not awardable absent contractual provision or established legitimate expectation
Case law is inconsistent; in Jamii Bora the contract expressly provided for such payment, and other awards rested on legitimate expectation. The respondent laid no foundation for breach of legitimate expectation. The Court endorsed the Court of Appeal in Marete and the Ugandan Supreme Court in Tinkamanyire, holding such anticipatory benefits speculative and unattainable in law.
Compensation for unfair termination under section 49(4)
Maximum compensation unwarranted; 4 months' gross wages (Kshs 66,184/-) appropriate given 4 years' service and employer's failure to accord an oral hearing
The finding of unfair termination was unchallenged. Under section 49(4), length of service (about 4 years) and the employer's apparent failure to afford representations under section 41(2) are relevant. These factors did not justify the maximum award of Kshs 175,896/-; four months' gross wages based on the September 2019 payslip of Kshs 16,546/- was appropriate.
Service pay where NSSF contributions were made
Not payable; entitlement excluded by section 35(5) & (6)
Payslips showed the respondent contributed to NSSF. Although he alleged the appellant did not remit deducted contributions, he produced no member statement from the Fund to substantiate this. Section 35(5) & (6) therefore disentitled him to service pay and the trial court erred in awarding Kshs 36,645/-.
Legal principles established
#- Where an employee is paid by the month, the statutory minimum notice of 28 days under section 35(1)(c) of the Employment Act invalidates a shorter contractual notice period
- Claims for lost income/anticipatory benefits to the end of a prematurely terminated contract are not anchored in law unless the contract expressly provides for them or legitimate expectation is established
- Severance pay is payable only on redundancy under section 40 of the Employment Act
Court orders
#- 1.Set aside and vacated the awards of 2 months' salary in lieu of notice, severance pay, lost income, Kshs 175,896/- compensation, October 2019 wages and service pay
- 2.Substituted awards: pay in lieu of notice Kshs 14,388/- and compensation Kshs 66,184/-, totalling Kshs 80,572/- payable 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 the Employment Act and applicable appeal provisions (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lupra Manpower and Human Resource Services Ltd v Mogeni & another (Appeal 2 of 2022) [2023] KEELRC 889 (KLR)", Case Analysis (2023). Appeal No 2 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/889/eng@2023-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.