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ELRCDismissedMemorandum of Appeal filed 31 December 2022· [2023] KEELRC 2591 (KLR)

Abongo v Chemelil Sugar Co Ltd (Appeal E051 of 2022) [2023] KEELRC 2591 (KLR)

Employment and Labour Relations Court
25 October 2023
RSRadido Stephen
1,172 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court confirmed that an employee who exits at retirement age cannot claim unfair termination compensation, and weak documentation sank all other claims.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisumu against a Principal Magistrate's judgment dismissing an employee's claims. Henry Odhiambo Abongo (Appellant) appealed against findings that his employment ended by retirement at age 60 rather than unfair termination. The court, per Radido Stephen J, applied the settled role of a first appellate court of re-evaluating the evidence. It held that the Appellant's letter of 20 September 2021 expressly referenced retirement, not termination, and agreed with the trial court that this was a retirement case, making compensation and notice pay unavailable. Although engaged on three-month fixed-term contracts, the Appellant was paid monthly and, after the last written contract expired on 30 November 2020, became a monthly employee with Employment Act protections; he was not a casual employee. The underpayment claim, anchored on a Collective Bargaining Agreement the Appellant did not produce, failed on proof and partly on limitation under section 90. The 76-month leave claim failed because leave carry-forward is capped at 18 months without approved accumulation. Gratuity was conceded but premature pending clearance under the Human Resource Policy, and the housing claim failed as the Appellant was on a consolidated wage with a running tenancy agreement. The appeal was dismissed with no order on costs.

Key legal issues

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01

Nature of termination of employment

Holding

The claim was one of retirement at age 60, not unfair termination

Reasoning

The Appellant's letter of 20 September 2021 expressly referenced retirement, requesting facilitation to claim NSSF benefits, not termination. Fixed-term contracts had converted to monthly contracts after expiry, but the exit was retirement, so remedies for unfair termination were unavailable.

p. 2
02

Status of the employee

Holding

The Appellant was not a casual employee but a monthly contracted employee on fixed-term contracts

Reasoning

He was paid monthly, not daily, so did not meet the section 2 definition of casual employee. Continuous employment after expiry of the last written contract converted his engagement to monthly contracts under the Employment Act.

p. 3
03

Underpayment of salaries

Holding

Claim failed for failure to produce the CBA and due to limitation under section 90

Reasoning

The Appellant anchored the claim on a CBA he did not produce in evidence, failing to prove the agreed remuneration. His suit filed in 2022 meant some aspects were caught by the three-year limitation in section 90 of the Employment Act.

p. 3

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and reanalyse the evidence on the record and determine whether the trial court's conclusions stand
  • An employee paid monthly, without a written contract after expiry of a fixed-term contract, becomes an employee on monthly contracts entitled to protections of the Employment Act
  • Leave days may only be carried forward up to 18 months absent approved accumulation

Court orders

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  1. 1.The Appeal is dismissed
  2. 2.No order on costs
On appeal from
Principal Magistrate's Court
Jurisdiction invoked
First appellate jurisdiction over appeal from the Principal Magistrate'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, "Abongo v Chemelil Sugar Co Ltd (Appeal E051 of 2022) [2023] KEELRC 2591 (KLR)", Case Analysis (2023). Memorandum of Appeal filed 31 December 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2591/eng@2023-10-25

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