Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMemorandum of Appeal dated 22nd September 2022 (number not stated in judgment)· [2024] KEELRC 2158 (KLR)

Eyasu t/a Eyasu Garage v Akuno (Appeal E160 of 2022) [2024] KEELRC 2158 (KLR)

Employment and Labour Relations Court
16 August 2024
JRJames Rika
995 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court upheld an unfair termination award, but confirmed employers only owe leave pay when employees actually worked.

What this practically means

#

Executive summary

#
This was an appeal to the Employment and Labour Relations Court at Nairobi, decided by James Rika, J on 16th August 2024, against a Trial Court judgment which had found in favour of the Respondent, a former employee of the Appellant Eyasu Wolde Gabriel, awarding him salary in lieu of notice, annual leave, house allowance and compensation for unfair termination totalling Kshs. 697,541, with costs and interest. The Appellant advanced 7 grounds, contending that the Respondent deserted duty, that termination was not at its instance, and that the awards of annual leave, house allowance, notice and compensation were erroneous and excessive. The appeal was canvassed by way of written submissions on the Record of Appeal. The Court upheld the finding that the Appellant terminated the employment unfairly and unlawfully: although the Appellant claimed the Respondent deserted from January to May 2018, both parties appeared before the Chief of Eastleigh South on 10th May 2018, where the Appellant paid the Respondent Kshs. 50,000 without raising desertion, and the employer had a legal obligation to institute disciplinary proceedings if desertion was alleged. The Court also upheld the awards of notice, 3 months' compensation (a modest award), and house allowance at 15% of basic salary, holding that mileage was no substitute for house allowance under Section 31 of the Employment Act. However, it agreed that the award of annual leave pay of Kshs. 164,791 was unjustified, since the Respondent, injured in South Sudan, was not doing meaningful work and was effectively resting while drawing a monthly salary. Grounds 4 and 7 were sustained, the annual leave award was set aside, and no order was made on the costs of the Appeal.

Key legal issues

#
01

Validity and fairness of termination

Holding

Termination was instigated by the Appellant, without valid reason and without fair procedure

Reasoning

The Respondent reported for duty but was unpaid; both parties appeared before the Chief on 10th May 2018, where the Appellant paid Kshs. 50,000 but never raised desertion. The employer thus failed to institute disciplinary proceedings if desertion was alleged. Procedure breached Sections 41 and 45 of the Employment Act.

p. 2
02

Entitlement to annual leave pay

Holding

The award of annual leave pay of Kshs. 164,791 was unjustified and is set aside

Reasoning

The Respondent was injured in South Sudan, did not actively drive from January to May 2018, and ordinarily made only about 6 trips annually. He was effectively resting while drawing monthly salary, so leave pay was not merited; the Trial Court gave inadequate weight to the colleague Simon's evidence.

p. 2
03

Entitlement to house allowance

Holding

The award of house allowance at 15% of basic salary was correct

Reasoning

The employer admitted it gave mileage, not a house. It did not establish that salary included house allowance. Mileage cannot substitute for house allowance under Section 31 of the Employment Act, and the 15% formula was never challenged.

p. 3
04

Quantum of notice and compensation

Holding

Compensation of 3 months' salary and 1 month's notice pay was lawful and modest

Reasoning

The Court found the awards not legally faulty and the compensatory award modest, rejecting the grounds attacking them.

p. 2

Legal principles established

#
  • An employer who alleges that an employee deserted duty has an obligation in law to institute a disciplinary process against the employee
  • Termination without valid reason and without procedure conforming to Sections 41 and 45 of the Employment Act is unfair
  • Mileage allowance is not a substitute for house allowance under Section 31 of the Employment Act
  • Annual leave pay is not merited where an employee was not doing meaningful work and was effectively resting while drawing salary

Court orders

#
  1. 1.Grounds 4 and 7 of the Memorandum of Appeal are sustained, and the award of annual leave pay at Kshs. 164,791 is set aside
  2. 2.No order on the costs of the Appeal

Authorities

#

Legislation

  • Employment ActSection 41
  • Employment ActSection 45
  • Employment ActSection 31
  • Electronic Case Management Practice Directions, 2020Practice Direction 6[2]
On appeal from
Trial Court (Employment and Labour Relations Court subordinate court; not specified in judgment)
Not stated
Jurisdiction invoked
Appellate jurisdiction over appeal from the Trial Court (Memorandum of Appeal dated 22nd September 2022); specific constitutional provision not cited

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Eyasu t/a Eyasu Garage v Akuno (Appeal E160 of 2022) [2024] KEELRC 2158 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 22nd September 2022 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2158/eng@2024-08-16

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