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ELRCPartially AllowedKisumu Appeal No. E054 of 2023· [2024] KEELRC 1335 (KLR)

Shikanga v G4S Kenya Limited (Appeal E054 of 2023) [2024] KEELRC 1335 (KLR)

Employment and Labour Relations Court
5 June 2024
RSRADIDO STEPHEN
968 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Appellant, Solomon Shikanga, sued G4S Kenya Ltd before the Principal Magistrate's Court for unfair termination. On 15 September 2023 the trial magistrate found the termination unfair and awarded compensation equivalent to one month's salary (Kshs 17,463/-). Aggrieved by the quantum, the Appellant appealed to the Employment and Labour Relations Court at Kisumu, contending that the magistrate acted on wrong principles, failed to consider his submissions and evidence, and that the award was too low; he sought enhancement to the statutory maximum of 12 months' gross salary under section 49(1)(c) of the Employment Act, 2007. The Respondent, relying on Kenfreight (EA) Ltd v Benson K. Nguti, maintained that the magistrate had judiciously exercised his discretion. The Court, guided by Kamau v Mungai on its role on a first appeal, found that although the magistrate lawfully considered the circumstances of termination under section 49(4)(b), he erred by failing to consider the Appellant's 14 years of service and clean disciplinary history as required by section 45(4), and by excluding overtime from the gross salary used to compute compensation, since section 49(1)(c) makes gross salary, including overtime, the dominant factor. The Court held that compensation equivalent to four months' gross salary would have been just and appropriate. The appeal succeeded to that extent: the one-month award was vacated and substituted with an award of Kshs 102,160/-, with costs of the appeal to the Appellant.

Key legal issues

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01

Role of a first appellate court

Holding

The Court is duty-bound to re-evaluate the evidence and reach its own conclusions while making allowance for not having seen or heard the witnesses

Reasoning

The Court adopted the guidance in Kamau v Mungai on the role of a first appellate court, and stated it would bear in mind the interdict on its role when reviewing the Principal Magistrate's award.

p. 2
02

Whether the Principal Magistrate erred in principle in the award of compensation

Holding

Although the trial magistrate lawfully considered only the circumstances of termination under section 49(4)(b), he erred by ignoring the employee's 14 years of service, clean disciplinary history, and by excluding overtime from gross salary

Reasoning

Section 49(4) enumerates 13 factors, of which the magistrate considered only one. Section 45(4) requires the employer to act in accordance with justice and equity, mandating consideration of length of service and disciplinary record. Section 49(1)(c) makes gross salary, including overtime, the dominant factor in computing compensation.

p. 3
03

The appropriate quantum of compensation

Holding

Compensation equivalent to 4 months' gross salary was just and appropriate, i.e. Kshs 102,160/-

Reasoning

Weighing the 14 years of service, the absence of adverse disciplinary history, the reasonable suspicion regarding the Appellant's conduct, and the correct gross salary of Kshs 25,540/-, the Court found one month's compensation inadequate and fixed compensation at four months' gross salary.

p. 3

Legal principles established

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  • On a first appeal, the Court has a duty to re-evaluate the evidence, assess it and reach its own conclusions while making due allowance for not having seen or heard the witnesses
  • In awarding compensation under section 49 of the Employment Act, the Court must consider the length of service and disciplinary history of the employee to act in accordance with justice and equity
  • Gross salary, which includes overtime, is a dominant factor in computing compensation under section 49(1)(c) of the Employment Act

Court orders

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  1. 1.The award of 1-month compensation is vacated and set aside and substituted with an award of Kshs 102,160/- as compensation (equivalent to 4 months' gross salary)
  2. 2.The Appellant to have costs of the Appeal
On appeal from
Principal Magistrate's Court
Jurisdiction invoked
First appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Principal Magistrate's Court in employment matters

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, "Shikanga v G4S Kenya Limited (Appeal E054 of 2023) [2024] KEELRC 1335 (KLR)", Case Analysis (2024). Kisumu Appeal No. E054 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1335/eng@2024-06-05

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