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ELRCPartially AllowedMemorandum of Appeal filed 4 August 2023 (number not stated in judgment)· [2024] KEELRC 1339 (KLR)

Ochami v Maseno University (Appeal E045 of 2023) [2024] KEELRC 1339 (KLR)

Employment and Labour Relations Court
5 June 2024
1,660 words in judgment
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The bottom line

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A Kenyan court increased a wrongfully dismissed worker's compensation by considering his 16 years of service, but rejected claims that were never properly pleaded or proven.

What this practically means

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Executive summary

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The Appellant, Moses Eganza Ochami, sued Maseno University before the Senior Principal Magistrates Court for unfair termination and breach of contract. On 5 July 2023 the Magistrate found the termination unfair and breach of contract on leave, awarding accrued leave of Kshs 81,099/-, one month's salary in lieu of notice (Kshs 7,241/-) and one month's compensation (Kshs 7,241/-). The Appellant appealed to the Employment and Labour Relations Court at Kisumu, contending inter alia that the Magistrate erred in declining maximum compensation of twelve months' gross pay, overtime, rest day pay, severance pay and lost income to retirement age. Applying the first-appeal duty to re-evaluate evidence, the Court held that compensation under section 49(4) of the Employment Act is an exercise of judicial discretion disturbed only on established error, but that the Magistrate erred by failing to consider the Appellant's 16 years of service; it substituted an award of compensation equivalent to seven months' gross wages, quantified at Kshs 50,687/-. The Court upheld the rejection of the overtime and rest day claims, as the Appellant did not identify the applicable Regulation of Wages Order and his own attendance records showed normal working hours. It also upheld the rejection of severance pay (an entitlement only in redundancy, which was not pleaded) and lost income (unpleaded). The failure to file submissions was properly considered by the trial court. The Appellant partially succeeded; each party was ordered to bear its own costs of the appeal.

Key legal issues

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01

Whether the award of one month's compensation should be enhanced

Holding

Yes - the Magistrate erred by failing to consider the Appellant's 16 years of service; compensation of 7 months' gross wages (Kshs 50,687/-) substituted

Reasoning

Compensation under section 49(4) is an exercise of judicial discretion, but length of service is one of the statutory factors the court must consider. The evidence showed about 16 years of service. By failing to factor in length of service, the trial court fell into an error of principle, justifying appellate interference and substitution of a higher award of seven months' gross wages.

p. 3
02

Overtime and rest day claims

Holding

Rejected - no error by the Magistrate

Reasoning

The Employment Act does not prescribe working hours; working hours are left to the parties' agreement, but the Labour Institutions Act and Regulations prescribe minimum hours beyond which overtime is payable. The Appellant did not identify the applicable Regulation of Wages Order, and his own attendance records showed normal working hours, undermining his claim.

p. 4
03

Severance pay and lost income claims

Holding

Both properly rejected

Reasoning

Severance pay attaches only to redundancy, which was not pleaded or found. Lost income to retirement age was likewise never pleaded, and parties and the court are bound by the pleadings. The Magistrate therefore committed no error in rejecting both heads of claim.

p. 4
04

Effect of failure to file submissions

Holding

The Magistrate properly considered the Appellant's unexplained failure to comply with a direction on submissions

Reasoning

Submissions are not a cosmetic exercise; they give a party the opportunity to make a legal case on issues such as maximum compensation. The Appellant offered no explanation for the non-compliance before the trial court or this Court, so the trial court properly took that failure into account.

p. 4

Legal principles established

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  • A first appellate court must re-evaluate the evidence and reach its own conclusions while making due allowance for not having seen or heard the witnesses
  • An appellate court will only disturb an award of compensation under section 49(4) of the Employment Act where the trial court failed to consider applicable principles or exercised its discretion injudiciously
  • Length of service is a mandatory factor in awarding compensation for unfair termination; failure to factor it in is an error of principle
  • Severance pay is an entitlement only in cases of redundancy
  • Parties and the court are bound by the pleadings; unpleaded causes cannot be awarded

Court orders

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  1. 1.The judgment of the Senior Principal Magistrate is set aside only to the extent that the award of one-month compensation is substituted with an award of compensation of Kshs 50,687/-
  2. 2.Each party to bear own costs of the Appeal
On appeal from
Senior Principal Magistrates Court
Jurisdiction invoked
First appellate jurisdiction over the Senior Principal Magistrates Court in an employment dispute (Memorandum of Appeal lodged with the Court on 4 August 2023); Employment Act, 2007, section 49(4) applied

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, "Ochami v Maseno University (Appeal E045 of 2023) [2024] KEELRC 1339 (KLR)", Case Analysis (2024). Memorandum of Appeal filed 4 August 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1339/eng@2024-06-05

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