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ELRCPartially AllowedAppeal No E044 of 2021· [2023] KEELRC 2119 (KLR)

Kombo v Riley Falcon Security Services Limited (Appeal E044 of 2021) [2023] KEELRC 2119 (KLR)

Employment and Labour Relations Court
21 September 2023
2,075 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 ruled that paying notice is not enough—employers must have valid reasons to fire, or pay compensation.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Kisumu against a Trial Court judgment of 27th October 2021, which had awarded the Appellant only one month's salary in lieu of termination notice and declined damages for loss of employment and unpaid leave. The Appellant, a security guard employed on a one-year fixed-term contract dated 2nd December 2019, was terminated on 31st March 2020 after the Respondent's client, Kenya Power and Lighting Company (KPLC), ended its contract with the Respondent. The court, guided by the first-appeal principles in Selle v Associated Motor Boat Co Ltd, re-evaluated the evidence. It held that the Appellant's contract predated the KPLC contract, so clause 9.3 tying his employment to the client's assignment could not relate to that contract, and that the grant of a one-year contract was inconsistent with a three-month client contract. Relying on Kenfreight (EA) Limited v Benson K. Nguti and Section 43 of the Employment Act, the court found the termination was not based on valid, fair and justified reasons and was therefore unfair. The Appellant was awarded compensation of five months' salary (Kshs. 84,215/-) under Sections 49 and 50 of the Employment Act, 2007. The award of one month's salary in lieu of notice was upheld. However, the claim for leave earned but not paid was dismissed, the Appellant having served only four months. The Respondent was ordered to bear the costs of the appeal.

Key legal issues

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01

Whether the termination of the Appellant's fixed-term contract was based on valid reasons

Holding

The termination was unfair because the automatic termination clause was unrelated to the KPLC contract and the reason given did not hold

Reasoning

The Appellant's contract was signed in December 2019, before the KPLC contract was entered into in February 2020, so clause 9.3 tying his services to the client assignment could not relate to that contract. The Appellant was also given a one-year contract despite the KPLC contract's three-month term. The termination was therefore not based on valid, fair and justified reasons and was unfair.

p. 5
02

Whether the Appellant was entitled to compensatory damages for unfair termination

Holding

Yes; awarded five months' salary under Sections 49 and 50 of the Employment Act

Reasoning

Having found the termination unfair, the court held the Appellant entitled to compensation under Sections 49 and 50 of the Employment Act, 2007. Section 49 does not provide compensation for the remainder of the contract term but allows discretion up to twelve months' salary. Considering the remaining service period and availability of comparable employment, five months' salary was deemed sufficient.

p. 5
03

Whether the Appellant was entitled to leave earned but not paid

Holding

No; the claim was dismissed because four months of service could not earn leave

Reasoning

The court found that the Appellant had served only four months under the contract and thus could not have accrued leave within that period. The trial court had not addressed the issue of leave. The claim was found to be without merit and dismissed.

p. 5

Legal principles established

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  • Termination of employment requires valid reasons and fair procedure, not merely notice or payment in lieu
  • The employer bears the burden of establishing a valid reason for termination

Court orders

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  1. 1.The award of one month's salary in lieu of termination notice is upheld
  2. 2.A declaration that the Appellant is entitled to compensatory damages for unfair termination
  3. 3.The Appellant is awarded 5 months' salary as compensation for unfair termination at Kshs. 84,215/-
  4. 4.The Respondent shall bear the costs of the appeal

Authorities

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Legislation

  • Employment ActSection 18(4)
  • Employment ActSection 45(3)
  • Employment ActSection 43
  • Employment Act, 2007Sections 49 and 50

Cases cited (9)

  • Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union
    [2016] eKLR
  • Cofiee Board of Kenya v Thika Cofiee Mills Limited & 2 Others
    [2014] eKLR
  • Selle & Another v Associated Motor Boat Co Ltd
    [1968] EA 123
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Kenfreight (EA) Limited v Benson K. Nguti
    [2016] eKLR
  • Charles Musungu Odana v Kenya Ports Authority
    [2019] eKLR
  • Cooperative Bank of Kenya Limited v Banking Insurance & Finance Union
    [2017] eKLR
  • Benjamin Langwen v National Environment Management Authority
    [2016] eKLR
  • Kenya Ports Authority v Festus Kipkorir Kiprotich
    [2014] eKLR
On appeal from
Trial Court (Magistrates' Court)
Jurisdiction invoked
First appellate jurisdiction over the Trial Court's judgment in an employment claim

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kombo v Riley Falcon Security Services Limited (Appeal E044 of 2021) [2023] KEELRC 2119 (KLR)", Case Analysis (2023). Appeal No E044 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2119/eng@2023-09-21

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