Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMombasa CM ELR Case No. 933 of 2019 (appeal)· [2023] KEELRC 2950 (KLR)

Nyandika v Inter Security Services (Appeal E048 of 2021) [2023] KEELRC 2950 (KLR)

Employment and Labour Relations Court
16 November 2023
ANAgnes Kitiku Nzei
1,967 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
This is a first appeal from the Chief Magistrate's Court at Mombasa (CM ELR Cause No. 933 of 2019, decided 23/7/2021 by Hon. F.N. Kyambia), which had dismissed the Appellant's employment claim in its entirety with costs. The Appellant, a security guard employed for about ten years earning Ksh. 9,000 monthly, claimed unfair termination and various dues. The appellate court, exercising its first-appeal duty of fresh scrutiny per Selle & Another v Associated Motor Boat Co. Ltd, framed two issues: whether the termination was unfair and whether the Appellant was entitled to the reliefs sought. It found unfair termination established: the Respondent's witness admitted there was no record showing the termination notice dated 29/6/2018 was ever served on the Appellant, and failure to issue notice under Section 35(1)(c) of the Employment Act renders termination unfair. The trial court's contrary finding was held to be erroneous. On reliefs, the court awarded ten months' salary (Ksh. 90,000) as compensation and one month's notice pay (Ksh. 9,000), but refused claims for underpayment, house allowance, unpaid leave and unpaid holidays as continuing injuries statute-barred under Section 90 (suit filed over twelve months after termination on 31/8/2018), refused severance pay (no redundancy), and refused unremitted deductions as unproved and because such deductions vest in NSSF/NHIF. The appeal partly succeeded: the trial judgment was set aside and substituted with judgment of Ksh. 99,000, with costs of the appeal (assessed on the lower scale) and of the court below, plus interest at court rates from the judgment date.

Key legal issues

#
01

Fairness of termination

Holding

Termination was unfair because the alleged termination notice was not shown to have been served on the Appellant, an admission made by the Respondent's own witness.

Reasoning

The Respondent's witness admitted there was nothing on record showing the letters dated 29/6/2018 were received by the Appellant. Without proof of service of the notice required by Section 35(1)(c) of the Employment Act, the termination was unlawful. The trial court erred in finding a termination notice was given. The appellate court declared the termination unfair.

p. 4
02

Entitlement to reliefs

Holding

Awarded ten months' salary (Ksh. 90,000) for unfair termination and one month's notice pay (Ksh. 9,000); refused other heads as statute-barred or unproved.

Reasoning

Compensation was calibrated to the circumstances of the termination. Notice pay was limited to the pleaded salary of Ksh. 9,000 since no evidence supported a higher rate. Claims for underpayment, house allowance, leave and holidays were continuing injuries statute-barred under Section 90. Severance failed as there was no redundancy; unremitted deductions were unproved.

p. 4

Legal principles established

#
  • Failure by an employer to issue a termination notice under Section 35(1)(c) of the Employment Act renders termination unlawful and unfair.
  • On a first appeal, the appellate court is empowered to subject the whole of the evidence adduced in the trial court to fresh and exhaustive scrutiny.
  • Claims for continuing injury must be brought within twelve months of cessation under Section 90 of the Employment Act.
  • Statutory deductions once made cease to be the employee's property and become the property of the statutory bodies; an employee cannot refund them unless the employer was unauthorized to make them.

Court orders

#
  1. 1.Trial Court's judgment delivered on 23/7/2021 set aside and substituted with judgment for the Appellant of Ksh. 90,000 compensation for unfair termination and Ksh. 9,000 one month salary in lieu of notice (total Ksh. 99,000)
  2. 2.Appellant awarded costs of the appeal and costs of the proceedings in the Court below; costs of the appeal to be assessed on the lower scale
  3. 3.Appellant awarded interest at Court rates from the date of the judgment

Authorities

#

Legislation

  • Employment ActSection 35(1)(c)
  • Employment ActSection 90

Cases cited (1)

  • Selle & Antoehr -vs- Associated Motor Boat Co. Ltd & Others
    [1968] EA 123
On appeal from
Chief Magistrate's Court at Mombasa (ELRC)
CM ELR Cause No. 933 of 2019
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's decision in an employment claim (Section 90 Employment Act context; the judgment does not cite a specific appellate provision)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nyandika v Inter Security Services (Appeal E048 of 2021) [2023] KEELRC 2950 (KLR)", Case Analysis (2023). Mombasa CM ELR Case No. 933 of 2019 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2950/eng@2023-11-16

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