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ELRCPartially AllowedMombasa ELRC Appeal (E544 of 2022)· [2024] KEELRC 1952 (KLR)

Inuka Africa Limited v Mokaya (Appeal E141 of 2023) [2024] KEELRC 1952 (KLR)

Employment and Labour Relations Court at Mombasa
18 July 2024
1,369 words in judgment
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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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This is a first appeal from the judgment of the trial magistrate in Mombasa CMELRC No. E544 of 2022, delivered on 16 November 2023, which found unfair termination of the respondent's employment and awarded her Ksh.625,000. The appellant sought a new trial and challenged the award as excessive. The respondent had been employed from February 2017, rising from Loan Officer to Branch Manager, earning Ksh.25,000 monthly, until her employment ended on 30 June 2022 following a disciplinary hearing and non-renewal of her contract on grounds of poor performance. She claimed terminal dues, notice pay, 12 months' compensation, unpaid salary, leave days and bonuses. The appellant, as employer, asserted gross underperformance and conflict of interest. Before the appellate court, the appellant filed no written submissions and did not attend subsequent mentions, leaving the appeal unsupported beyond the Record of Appeal. The court reiterated the role of a first appellate court in reviewing the entire record while according due deference to the trial court's advantage of hearing the evidence. It upheld the compensation award at 6 months and the awards for notice pay and unpaid salary, but reduced leave pay to Ksh.27,500 in line with the statutory cap under Section 28(4) of the Employment Act, and set aside the bonus award of Ksh.300,000 for want of evidence. The court also noted the absence of any specific prayer or submissions regarding the respondent's alleged discriminatory treatment due to pregnancy. The appellant was ordered to pay costs of both the lower court and the appeal.

Key legal issues

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01

Award of compensation for unfair termination

Holding

The trial magistrate's award of 6 months' compensation was upheld as the appellant filed no submissions showing the discretion was wrongly exercised

Reasoning

The learned Magistrate awarded all claims but capped compensation at 6 months instead of 12 months. The appellate court found reasons were given for the award of compensation on findings of unfair termination lacking due process. No written submissions were filed on the appeal demonstrating that the trial court applied its discretion wrongly.

p. 3
02

Leave days not taken

Holding

The award of Ksh.125,000 was excessive; leave pay should be Ksh.27,500 based on 33 days at Ksh.25,000 monthly wage

Reasoning

Section 28(4) of the Employment Act caps untaken leave days at 18 months' worth of annual leave days, totaling 33 days. At a wage of Ksh.25,000, the respondent's untaken leave days amount to Ksh.27,500. The trial court's award of Ksh.125,000 exceeded this statutory cap and was therefore reduced.

p. 3
03

Bonus claim

Holding

The bonus claim of Ksh.300,000 fails for want of evidence; entitlement to a bonus must be based on written approval

Reasoning

A bonus is at the discretion of the employer and as a special claim must be based on written approval. Despite the appellant not calling any witness, the respondent did not submit any evidence as to how such a benefit accrued at the end of employment. The trial court's award had no basis or foundation and was therefore set aside.

p. 3
04

Notice pay and unpaid salary

Holding

Notice pay was correctly awarded upon the finding of a lapse in due process; unpaid salary for June 2022 was correctly awarded as the appellant's response confirmed employment terminated with effect from 30 June 2022

Reasoning

Upon the finding that there was a lapse in due process, notice pay is correctly awarded. On the claim for unpaid salary for June 2022, the appellant's own response confirmed employment terminated with effect from 30 June 2022, so the due salary of Ksh.25,000 was correctly awarded.

p. 3
05

Costs of the appeal

Holding

The appellant, having moved with haste to file the appeal and secure a stay but thereafter doing nothing to prosecute it, is to pay costs of the lower court and the appeal

Reasoning

The appellant filed the appeal and a stay application but thereafter failed to prosecute the appeal, filing no written submissions and not attending subsequent mentions. The sole reason for the appeal appears to have been to seek a stay of execution. The request for a fresh trial was left bare, warranting costs against the appellant.

p. 3

Legal principles established

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  • The role of a first appellate court is to review the entire record and make its own conclusions, mindful that the trial court had the advantage of hearing the parties in evidence
  • Under Section 28(4) of the Employment Act, untaken leave days are capped at 18 months' worth of annual leave days, being a total of 33 days
  • A bonus claim is discretionary for the employer and as a special claim must be based on written approval

Court orders

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  1. 1.Compensation at 6 months Ksh.150,000
  2. 2.Notice pay Ksh.25,000
  3. 3.Unpaid salary for days worked Ksh.25,000
  4. 4.Leave pay Ksh.27,500
  5. 5.Costs of the appeal and the lower court proceedings to the appellant (appellant to pay costs of the lower court and this appeal)

Authorities

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Legislation

  • Employment ActSection 28(4)
On appeal from
Magistrates' Court (ELRC), Mombasa
Mombasa CMELRC No. E544 of 2022
Jurisdiction invoked
First appeal from the trial magistrate in an employment claim under the Employment Act

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, "Inuka Africa Limited v Mokaya (Appeal E141 of 2023) [2024] KEELRC 1952 (KLR)", Case Analysis (2024). Mombasa ELRC Appeal (E544 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1952/eng@2024-07-18

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