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ELRCPartially AllowedKaloleni ELRC Appeal (from ELRC No. E007 of 2023)· [2024] KEELRC 383 (KLR)

Cupstone Travels Limited (CT) v Tindi (Appeal E023 of 2023) [2024] KEELRC 383 (KLR)

Employment and Labour Relations Court
15 February 2024
MMM. Mbarũ
1,771 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court cut a driver's unfair dismissal payout from 9 to 3 months' salary, ruling courts must weigh an employee's poor work record before setting compensation.

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 Mombasa against the judgment in Kaloleni ELRC No. E007 of 2023, in which a magistrate found that a driver's employment had been unfairly terminated and awarded him his claims as pleaded. The driver, employed from April 2012 at Kshs. 18,300 per month, was dismissed on 26 January 2023 following complaints of reckless and dangerous driving, without attending a disciplinary hearing. The court, sitting as a first appellate court, re-evaluated the record. It found that the payment of Kshs. 35,600 upon termination already covered notice pay and January 2023 wages, so the lower court award on those heads amounted to double payment and was set aside. On limitation, employment was continuous for over ten years, so the claim was filed within the three-year window under Section 90 of the Employment Act, though underpayment had to be specifically pleaded with the wage differentials; only the nine months from May 2022 to January 2023 were quantified, at Kshs. 47,659.23, of which Kshs. 5,295.47 per month was awarded. Leave pay was limited by the 18-month accumulation rule in Section 28(2), yielding Kshs. 22,569.58 for 33 days. NHIF claims fail as remittance is due to the statutory body, and service pay is excluded because the employee was registered with NSSF and NHIF. The 9 months' compensation was reduced to 3 months (Kshs. 70,786.41) because the magistrate failed to factor in the employee's record of reckless driving; the lapse was procedural only. The appeal partially succeeded, with lower court costs maintained and each party bearing its own costs on appeal.

Key legal issues

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01

Notice pay and days worked

Holding

Payment of Kshs. 35,600 covered both notice and January 2023 wages; no further award justified

Reasoning

The termination letter offered one month notice pay and the unchallenged transaction advice shows payment of Kshs. 35,600, more than double the monthly wage of Kshs. 18,300. Awarding the same again in the lower court judgment would amount to double payment and was therefore set aside.

p. 3
02

Limitation on underpayment, house allowance and leave claims

Holding

Employment was continuous from 2012 to 2023; the claim was filed within the 3-year period under Section 90

Reasoning

Section 90 limits claims to 3 years from when the cause of action arose, read with Section 35(4). Since employment ran continuously from April 2012 to January 2023 and the claim was filed within time, terminal dues for the whole duration were claimable. However, underpayment had to be specifically pleaded with the wage differentials, not raised generally.

p. 3
03

Leave pay

Holding

Leave can only accumulate up to 18 months under Section 28(2); award computed at Kshs. 22,569.58 for 33 days

Reasoning

Section 28(2) caps accumulation of annual leave at 18 months unless the employee applied for leave and was declined, or was allowed in writing to carry over accrued days. The court computed leave on the minimum basic wage of Kshs. 20,517.80 for 33 days.

p. 4
04

Compensation for unfair termination

Holding

9 months reduced to 3 months given the employee's record of reckless driving

Reasoning

The award is discretionary but must be exercised judicially with reasons under Section 45(5). While the lack of valid reasons and due process justified compensation, the magistrate failed to consider the respondent's work record of repeated notices for careless and reckless driving, which went to the core of his duties as a driver. Three months' compensation appropriately reflected the procedural lapse alone.

p. 4

Legal principles established

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  • Employer bears duty to confirm work records and what an employee has been paid
  • Compensation awards under Section 45 must be justified with reasons taking into account the employee's work record

Court orders

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  1. 1.Compensation at 3 months Kshs. 70,786.41
  2. 2.Underpayment Kshs. 5,295.47
  3. 3.Leave pay Kshs. 22,569.58
  4. 4.Costs for the lower court as awarded
  5. 5.Each party to bear own costs in this appeal

Authorities

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Legislation

  • Employment Act, 2007Section 10(6) and (7)
  • Employment Act, 2007Section 90
  • Employment Act, 2007Section 35(4), (5) and (6)
  • Employment Act, 2007Section 28(2)
  • Employment Act, 2007Section 45 and 45(5)

Cases cited (2)

  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
On appeal from
Kaloleni (ELRC subordinate court)
ELRC No. E007 of 2023
Jurisdiction invoked
First appellate jurisdiction over subordinate court employment claim

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, "Cupstone Travels Limited (CT) v Tindi (Appeal E023 of 2023) [2024] KEELRC 383 (KLR)", Case Analysis (2024). Kaloleni ELRC Appeal (from ELRC No. E007 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/383/eng@2024-02-15

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