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ELRCAllowedMemorandum of Appeal filed 1 August 2023 (number not stated in judgment)· [2024] KEELRC 16 (KLR)

Apondi v Maadili Schools (Appeal E042 of 2023) [2024] KEELRC 16 (KLR)

Employment and Labour Relations Court
24 January 2024
674 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 doubled an unfairly dismissed employee's award to Kshs 300,000 after the magistrate failed to explain why she refused compensation.

What this practically means

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Executive summary

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The Appellant, Linet Irene Apondi, had sued Maadili Schools before the Subordinate Court for unfair termination and breach of contract. On 19 July 2023 the Principal Magistrate found the termination unfair and awarded pay in lieu of notice but declined to award compensation under section 49 of the Employment Act, 2007. The Appellant appealed on the sole ground that the magistrate erred in declining compensation despite finding the dismissal unlawful and unfair. Adopting the first-appeal mandate of re-appraisal and re-hearing drawn from Judicial Service Commission v Lucy Muthoni Njora, the Court examined the discretionary framework in sections 49(1)(c) and 49(4) of the Employment Act, noting that compensation of up to 12 months' gross wages may be awarded, guided by factors such as length of service, the employee's wishes and contribution to termination. The Court held that the magistrate's discretion was exercised injudiciously because she failed to indicate which factors she considered in declining compensation, and that an appellate court may intervene where discretion is exercised on wrong principles (Butt v Khan; Kenya Broadcasting Corporation v Geoffrey Wakio). Weighing the Appellant's approximately 8 years of service, the fact that she received only pay in lieu of notice, and the breakdown of a marital relationship between her and a director of the Respondent, the Court assessed compensation at six months' gross salary. The Court allowed the appeal, set aside and vacated the order declining compensation, awarded Kshs 300,000/- (gross salary then being Kshs 50,000/- per month), and gave the Appellant costs of the appeal.

Key legal issues

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01

Whether the trial magistrate's discretion in declining compensation for unfair termination was exercised judiciously

Holding

The discretion was exercised injudiciously because the magistrate gave no indication of which section 49(4) factors she considered, warranting appellate intervention.

Reasoning

Section 49(1)(c) of the Employment Act permits compensation of up to 12 months' gross wages for unfair termination, guided by the section 49(4) factors including the employee's wishes, contribution to termination, length of service, reasonable expectations and availability of alternative employment. The magistrate made an unexplained award of only pay in lieu of notice despite finding the termination unfair. Absent any indication of the factors considered, the discretion was exercised on no discernible principles, justifying intervention per Butt v Khan.

p. 2
02

The appropriate quantum of compensation on re-evaluation

Holding

Six months' gross salary (Kshs 300,000/-) was appropriate compensation given about 8 years of service, the award of only pay in lieu of notice, and the breakdown of a marital relationship between the Appellant and a director of the Respondent.

Reasoning

Re-evaluating the record, the Court weighed the Appellant's roughly 8 years of service against the sole award of pay in lieu of notice. It also noted the personal dimension: the Appellant and a director of the Respondent were in a marital relationship that had broken down. Balancing these section 49(4) factors, the Court considered six months' gross salary, calculated on the Kshs 50,000/- gross salary at separation, an appropriate award.

p. 2

Legal principles established

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  • A first appellate court proceeds by way of re-hearing, re-appraising the evidence and drawing its own inferences of fact to arrive at independent conclusions.
  • The judicial discretion to award or not award compensation for unfair termination must not be exercised arbitrarily, capriciously or whimsically, and an appellate court may intervene where it is exercised injudiciously or on wrong principles.
  • A magistrate who declines compensation after finding unfair termination must indicate which of the section 49(4) factors were considered; failure to do so renders the exercise of discretion injudicious.

Court orders

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  1. 1.The order of the Principal Magistrate declining to award compensation is set aside and vacated
  2. 2.Compensation of Kshs 300,000/- (equivalent of 6 months' gross salary at Kshs 50,000/-) awarded to the Appellant
  3. 3.The Appellant to have costs of the Appeal
On appeal from
Subordinate Court (Principal Magistrate)
not stated
Jurisdiction invoked
First appellate jurisdiction over an appeal from the subordinate court in an employment dispute; appeal under the Employment Act, 2007 framework (Section 49(1)(c) and 49(4))

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Apondi v Maadili Schools (Appeal E042 of 2023) [2024] KEELRC 16 (KLR)", Case Analysis (2024). Memorandum of Appeal filed 1 August 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/16/eng@2024-01-24

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