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ELRCDismissedELRC Appeal (Nairobi) – Appeal against Ruiru CMEL No. E15 of 2022

Everflora Limited v Silikhan (Appeal E003 of 2023) [2024] KEELRC 239 (KLR)

Employment and Labour Relations Court
9 February 2024
3,983 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that an employer who dismisses a worker without a hearing and without proof loses the appeal and pays up.

What this practically means

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Executive summary

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Everfiora Limited appealed against the judgment of Hon. J.A Agonda in Ruiru CMEL No. E15 of 2022, in which Ben Sudi Silikhan, a senior foreman employed for 28 years, was awarded Kshs 1,256,734.20 for unfair termination, notice pay, overtime, service pay, annual leave, costs and interest. The appeal, disposed of by written submissions, contested procedural fairness, substantive justification and each relief. Abuodha Nelson Jorum J applied the Selle v Associated Motor Boat Co principles governing a first appeal, re-evaluating the evidence. The court held the employer failed to prove a valid and fair reason for the summary dismissal: no report proved the alleged 90% incorrect cut points, which were not even the Respondent's responsibility, and intoxication and lateness were unproven for want of Alcoblow or attendance records. Procedurally, the Respondent was dismissed without a show cause letter on the operative charges, without representations and without a disciplinary hearing, contrary to section 41 of the Employment Act, and was therefore condemned unheard. The 12-month maximum compensation was upheld under section 49(4), as were notice pay, overtime (the employer having failed to produce employment records to rebut the claim) and unpaid leave (a continuing injury claimed within 12 months). The only interference was arithmetical: service pay was recalculated at 15 days per completed year (Kshs 462,602) less Kshs 214,780 already paid, yielding Kshs 247,822 in place of Kshs 677,381. The appeal was otherwise dismissed with costs to the Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondent's employment was unfairly terminated
  2. 2.Whether the Respondent was entitled to the reliefs awarded by the trial court

Key legal issues

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01

Procedural fairness in termination

Holding

Summary dismissal without a show cause letter, representations or disciplinary hearing offended section 41 of the Employment Act and rendered the termination unfair

Reasoning

The court found the Respondent was dismissed without being heard: no show cause letter on the actual charges, no representation, and no disciplinary hearing. Section 41(2) requires notification and hearing in the presence of a fellow employee of choice. The 2021 charges had already been punished by suspension and warnings, and the dismissal rested on unproven charges of incorrect cut points and threats. Being condemned unheard rendered the process unfair, and the lower court's finding was upheld.

p. 7
02

Substantive justification for termination

Holding

The employer failed to prove a valid and fair reason; the allegation of 90% incorrect cut points was not the Respondent's responsibility and no report or supporting witness was produced

Reasoning

The court found the cutting of flowers was not the Respondent's role, that intervening supervisors bore responsibility yet were not disciplined, and no report or witness proved the alleged 90% defect. Intoxication and lateness were likewise unproven for want of Alcoblow or attendance records. Given 28 years of unblemished service, the inference was that he was turned away without valid reason, lending plausibility to his claim of age-based termination.

p. 6
03

Compensation for unfair termination

Holding

The maximum 12 months' compensation under section 49 was justified by 28 years of service, the employer's conduct, and the Respondent's limited re-employment prospects at his age

Reasoning

The court treated the award as discretionary and applied the standard against interfering with discretion absent error. Section 49(4) factors — length of service, the manner of termination and diminished employment prospects — supported the maximum award. No error in the trial court's exercise of discretion was demonstrated, so the award of Kshs 396,516 stood.

p. 7
04

Service pay

Holding

Service pay was payable; the trial court's 15-days-per-year rule was correct but its arithmetic was corrected to Kshs 247,822 after deducting Kshs 214,780 already paid

Reasoning

There was no proof of statutory NSSF/NHIF deductions for the relevant years excluding the Respondent from service pay under section 35(5), the parties' contract bound them, and the employer's actual payment of Kshs 214,780 indicated entitlement. Neither party documented their calculation formula, so the 15-days-per-year convention was applied: 16,521 x 28 = 462,602, less 214,780 already paid, yielding 247,822.

p. 7
05

Overtime and burden of records

Holding

The overtime award was justified because the employer, having conceded overtime was paid, failed to produce records disproving the claim

Reasoning

Relying on the employer's statutory duty to keep employment records and the Yator decision, the court held the employer ought to have produced work records to rebut the overtime allocation sheets. The sheets were stored in the employer's storeroom and the Respondent could not have possessed them illegally, so the trial court was justified in granting the claim.

p. 8
06

Annual leave limitation

Holding

Unpaid leave is a continuing injury claimable within 12 months of termination; the claim filed in July 2022 following April 2022 termination was timely

Reasoning

The court accepted the continuing injury doctrine: unpaid leave accrues successively and remains claimable within 12 months after cessation of employment. Since termination occurred in April 2022 and the suit was filed in July 2022, the claim for outstanding leave was within time, and the trial court's award of Kshs 46,260.20 was affirmed.

p. 8

Legal principles established

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  • A first appellate court must reconsider and evaluate the evidence afresh, drawing its own conclusions while making allowance for not having seen or heard the witnesses
  • The employer bears the burden of proving both a valid and fair reason for termination and that a fair procedure under section 41 was followed, even where gross misconduct is alleged
  • An appellate court will not interfere with a discretionary award absent an error of principle or manifest wrongness occasioning injustice
  • Unpaid leave is a continuing injury claimable within 12 months of cessation; the employer must keep and produce employment records, failing which the employee's claim stands

Court orders

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  1. 1.Appeal dismissed with costs
  2. 2.Service pay award varied: recalculation at 15 days' salary per completed year (Kshs 16,521 x 28 = Kshs 462,602) less Kshs 214,780 already paid, yielding Kshs 247,822 in place of the trial court's Kshs 677,381
  3. 3.All other awards of the trial court (compensation of Kshs 396,516, one month's notice pay Kshs 33,043, overtime Kshs 103,534, annual leave Kshs 46,260.20) upheld
  4. 4.Costs of the suit awarded to the Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Ruiru Chief Magistrate's Court (ELRC)
Ruiru CMEL No. E15 of 2022 (Ben Sudi Silikhan v Everfiora Limited)
Jurisdiction invoked
First appellate jurisdiction over the subordinate court under the Employment and Labour Relations Court Act / Civil Procedure framework (judgment does not state the enabling provision)

Relief refused

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Appellant's prayer to set aside the trial court judgment

Appeal found without merit; the trial court's findings on unfair termination and most reliefs were upheld

p. 8

Costs

Appeal dismissed with costs to the Respondent (costs of the appeal and the suit awarded to the Respondent).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In conclusion, apart from the adjustment in the calculation of the service pay in paragraph 59 above, the appeal is found without merit and is hereby dismissed with costs.
p. 8Disposition
There was no show cause letter given to the Respondent, the Respondent did not make any representation on the said accusations, the Respondent was never called for any disciplinary hearing. This therefore meant that the Respondent was condemned unheard.
p. 7Procedural fairness under section 41
The duty to prove the reasons lies with the Employer under section 47(5) even if the allegations amount to gross misconduct under section 44(4) of the Employment Act.
p. 6Burden of proof on employer
This a continuing injury which must be claimed within 12 month's after cessation thereof.
p. 8Annual leave as continuing injury
It is the responsibility of the employer to keep employment records hence when the appellant's witnesses conceded at the trial that overtime was paid, they ought to have produced records to show that the respondent was not entitled to the overtime claimed.
p. 8Employer's duty to keep records

Issues in the judgment

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minor

The judgment does not state the case number of the appeal itself, identifying it only by reference to the lower court matter

minor

Typographical errors in party/case names in cited authorities (e.g. 'Sewarage', 'Cofiees', 'Est African Growers', 'St. Leornard's')

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, "Everflora Limited v Silikhan (Appeal E003 of 2023) [2024] KEELRC 239 (KLR)", Case Analysis (2024). ELRC Appeal (Nairobi) – Appeal against Ruiru CMEL No. E15 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/239/eng@2024-02-09

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