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ELRCPartially AllowedMemorandum of Appeal dated 22nd February, 2023 (from CMELR No. 250 of 2019)

Lidwaji v Board of Trustees Alliance Francais De Nairobi (Appeal E016 of 2023) [2024] KEELRC 2585 (KLR)

Employment and Labour Relations Court (Appellate jurisdiction)
23 October 2024
2,459 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court tripled an unfairly dismissed 20-year employee's compensation to the maximum 12 months' salary, ruling low awards need justification.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court against the judgment of Honourable M.W. Murage (SRM) in CMELR No. 250 of 2019 delivered on 2nd December 2022, in which the trial court found the appellant's termination both substantively and procedurally unfair and awarded him four months' pay (Kshs. 137,612.48) plus costs, interest and a certificate of service. The appellant, an employee of 20 years standing dismissed in December 2018 over a vague allegation of disrespect towards a fellow employee, contended that the award was inordinately low, that the magistrate gave no legal basis for the four-month award contrary to sections 49 and 50 of the Employment Act, and that his claim for Kshs. 1,000,000 for loss of employment opportunity was ignored without justification. The respondent maintained the magistrate properly exercised discretion under section 49(4) and urged no more than three months' compensation. Relying on the Selle v Associated Motor Boat principles and the Kenya Revenue Authority v Darasa Investments test for interfering with discretion, the court found the trial court erred in awarding only four months' pay without justification, given the appellant's 20 years of service, the finding of unfair termination, absence of any contribution finding, and the respondent's failure to call witnesses. The court enhanced compensation to the maximum 12 months' salary, Kshs. 412,837.44, but declined damages for loss of employment opportunity for want of proof. The appeal partially succeeded, with each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Honourable Magistrate erred in law and in fact in awarding compensation equivalent to four months' pay without laying any legal basis for the same
  2. 2.Whether the damages awarded for unlawful termination under sections 49 and 50 of the Employment Act were inordinately low considering the Appellant's length of service and the circumstances surrounding the termination
  3. 3.Whether the trial court erred in failing to consider and address the Claimant's prayer for damages for loss of employment opportunity

Key legal issues

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01

Interference with the trial court's discretionary award of compensation for unfair termination

Holding

The trial court erred in awarding only four months' salary without justification; the appellant was entitled to the maximum compensation of 12 months' salary given his 20 years of service, the finding of unfair termination, and absence of contribution.

Reasoning

An appellate court may disturb a discretionary award only where the trial court misdirected itself, resulting in a wrong decision. The trial court awarded four months' pay without any justification, contrary to section 49(4) of the Employment Act. Considering the appellant's 20 years of service, the finding that termination was both substantively and procedurally unfair, no finding of contribution, and the undefended nature of the suit, maximum compensation was warranted.

p. 5
02

Claim for damages for loss of employment opportunity at LDD

Holding

The claim fails; the appellant did not demonstrate how the respondent contributed to the loss of the job opportunity at LDD, and the trial court was right to decline any award.

Reasoning

To succeed in such a claim, the appellant ought to have sufficiently demonstrated before the trial court how the respondent contributed to the loss of a job opportunity at another institution. The court found the appellant had not done so and agreed with the trial court's refusal to make any award.

p. 5

Legal principles established

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  • A court hearing an employment dispute must be guided by the considerations set out under section 49(4) of the Employment Act when making an award of compensation, and should give reasons for its award.
  • An appellate court should not interfere with the exercise of discretion unless satisfied that the lower court misdirected itself in some matter and as a result arrived at a wrong decision.
  • Where a respondent files a defence but does not call any witness, the defence remains mere allegations.

Court orders

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  1. 1.Award of 12 months' salary as compensation for unfair termination of Kshs. 412,837.44
  2. 2.Damages for loss of employment opportunity NIL
  3. 3.Each party to bear their own costs of the Appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Subordinate Court (Chief Magistrate's Court, Employment and Labour Relations)
CMELR No. 250 of 2019
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the subordinate court in employment and labour relations matters

Relief refused

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Damages for loss of employment opportunity of Kshs. 1,000,000

The appellant did not sufficiently demonstrate how the Respondent contributed to the loss of a job opportunity at LDD

p. 5

Costs

Since the appeal is partially successful, each party shall bear their own costs of the Appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For reasons adumbrated in paragraph 24 above, the appellant was entitled to maximum compensation of 12 months’ salary.
p. 5Compensation for unfair termination
In the upshot the Appeal partially succeeds as follows; _ a. 12 Months’ salary as compensation for unfair termination Kshs. 412,837.44 /= b. Damages for loss of employment opportunity…NIL
p. 5Final orders
Since the appeal is partially successful, each party shall bear their own costs of the Appeal.
p. 5Costs
The court therefore agrees with the trial court in declining to make any award in this respect.
p. 5Loss of employment opportunity

Issues in the judgment

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minor

Butt vs Khan is cited with two different citations - (1981) KLR 349 by the appellant and (1977) 1 KAR by the respondent

minor

The court's key holding referencing paragraph 24 appears to cite a paragraph number within the judgment itself

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, "Lidwaji v Board of Trustees Alliance Francais De Nairobi (Appeal E016 of 2023) [2024] KEELRC 2585 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 22nd February, 2023 (from CMELR No. 250 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2585/eng@2024-10-23

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