Omondi v County Public Service Board, Homabay County & another (Appeal E031 of 2022) [2024] KEELRC 1640 (KLR)
The bottom line
#Kenya's Employment Court in Kisumu declared a Homa Bay County employee unfairly terminated, awarded him 12 months' salary, but rejected his four-year salary arrears claim for lack of proof.
What this practically means
#Executive summary
#Key legal issues
#Whether the Trial Court's judgment was vitiated by being premised on the wrong (unamended) Statement of Claim
Yes; the Trial Court dwelt on the Statement of Claim dated 23rd September 2020 rather than the Amended Statement of Claim dated 2nd February 2022, resulting in wrong orders, justifying setting aside the judgment in its entirety.
The court found from the record that leave to amend, granted on 20th January 2022, expanded the reliefs sought, yet the impugned judgment was framed on the original pleadings. Deciding on the wrong statement of claim meant the orders issued did not correspond to the reliefs actually before the court, an error warranting appellate intervention and re-analysis of each prayer under the amended claim.
Whether the claim for unpaid salary arrears (2017-2021) was proven
No; the claim failed for want of proof, and the Trial Court's award of salary arrears was set aside.
The Appellant admitted his salary stopped in November 2017, placing on him the burden of proving continued service for 44 months. No duty roster or attendance records were produced. The court also held he was obliged to mitigate by seeking alternative employment rather than remain unpaid for four years, so the claim was not proven on a balance of probability.
Whether the Appellant's termination was unfair and whether he deserved compensation
Yes; the termination was unfair and the Appellant was awarded the maximum 12 months' salary as compensation.
The Respondents led no evidence rebutting the Appellant's unrebutted testimony that he was not taken through due process before the stoppage of salary and termination notice, contrary to Article 41 of the Constitution and Sections 43, 45 and 47(5) of the Employment Act. A finding of unfair termination entitles the employee to compensation under Sections 49 and 50, and the manner of termination justified the maximum award of 12 months' salary.
Whether the Appellant was entitled to pay in lieu of notice
Yes; in the absence of the appointment letter establishing the contractual notice period, one month's statutory notice pay was awarded.
Neither party produced the letter of appointment, so the contractual notice period could not be established. The court nonetheless found the Appellant entitled to notice pay and awarded the statutory one month's pay in lieu of notice at Kshs. 16,692/-, rather than the three months pleaded.
Legal principles established
#- A first appellate court must reconsider and re-evaluate the evidence and draw its own conclusions while allowing for the trial court's advantage of seeing and hearing witnesses.
- An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles or misapprehended the evidence.
- A termination that falls short of due process violates Article 41 of the Constitution and Sections 43, 45 and 47(5) of the Employment Act and entitles the employee to compensation under Sections 49 and 50.
Court orders
#- 1.The finding of the Trial Court, having been premised on the wrong statement of claim, is set aside in its entirety
- 2.A declaration that the Appellant was unfairly terminated
- 3.An award of 12 months' salary as compensation for unfair termination at Kshs. 200,304/-
- 4.One-month salary in lieu of notice at Kshs. 16,692/-
- 5.The 1st Respondent (County Public Service Board of Homabay) shall bear the costs of this appeal
- 6.Costs of the suit before the lower court are set aside
- On appeal from
- Trial Court (magistrates' court, unspecified)
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over the Trial Court's decision in an employment dispute (court not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omondi v County Public Service Board, Homabay County & another (Appeal E031 of 2022) [2024] KEELRC 1640 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1640/eng@2024-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.