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ELRCPartially AllowedCivil Appeal No E227 of 2022· [2024] KEELRC 2651 (KLR)

Zeze v Njoki (Civil Appeal E227 of 2022) [2024] KEELRC 2651 (KLR)

Employment and Labour Relations Court
31 October 2024
1,527 words in judgment
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The bottom line

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Kenya's Employment Court increased an unfairly terminated worker's award to Kshs. 135,000, confirming that unproven redundancy claims must be treated as unfair termination.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Nairobi (Linnet Ndolo, J) against a judgment of E.M. Kagoni, PM dated 24th December 2019, which awarded the appellant one month's pay in lieu of notice, Kshs. 30,000 compensation, a certificate of service, costs and interest for unfair termination. The appellant raised 15 grounds, condensed into four issues: the mode of termination, the level of compensation, house allowance/service pay/leave pay, and the effect of the absence of a written contract. The court agreed that the trial Magistrate misdirected himself by reading redundancy into a case where it was neither pleaded nor proved; the proper characterisation was unfair termination under Section 45 of the Employment Act. On compensation, the court found the trial court considered only one Section 49(4) factor and relied on an unsupported finding about alternative employment, and augmented the award from two to four months' salary. House allowance was refused because the consolidated salary exceeded the minimum wage; leave pay was refused as the 10-year claim contradicted the pleaded 8 years of service; service pay of Kshs. 60,000 was awarded in the absence of evidence of NSSF contributions. Failure to issue a written contract shifted the burden of proof under Section 10(7) but conferred no separate damages. The appeal partially succeeded, with the total award varied to Kshs. 135,000; the appellant was ordered to pay the costs of the appeal and the proceedings below.

Key legal issues

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01

Whether termination on the Respondent's relocation amounted to redundancy

Holding

No; redundancy was neither pleaded nor proved, so the correct characterisation was unfair termination under Section 45 of the Employment Act.

Reasoning

The trial Magistrate proceeded on the basis of redundancy based on evidence that the appellant lost her job upon relocation. However, the court held that redundancy was not pleaded by either party and no evidence was led on it. Termination without cause or notice falls under Section 45, and remedies must be framed accordingly under Section 49.

p. 3
02

Whether the compensatory award of two months' salary was inordinately low

Holding

Yes; the award was increased from two to four months' salary.

Reasoning

Section 49(4) lists 13 factors for assessing remedies. The trial court considered only one factor - availability of alternative employment - and even that conclusion was unsupported by evidence. Length of service of eight years and the appellant's lack of blame justified interference and augmentation to four months' salary.

p. 3
03

Entitlement to house allowance, service pay and leave pay

Holding

House allowance and leave pay refused; service pay of Kshs. 60,000 awarded.

Reasoning

The consolidated salary exceeded the minimum wage, defeating the house allowance claim. With unfair termination under Section 45 established and no evidence of NSSF contributions, service pay became legitimate. The leave pay claim for 10 years contradicted the pleaded 8 years of service and was rightly rejected.

p. 4
04

Effect of failure to issue a written contract

Holding

Section 10(7) shifted the burden of proof to the Respondent but confers no separate damages remedy.

Reasoning

The absence of a written contract means the employee's averments as to terms of service are deemed correct unless disproved by the employer under Section 10(7). The appellant benefited from that presumption of the pleaded terms, but the statute provides no independent compensatory head for the omission.

p. 4

Legal principles established

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  • Redundancy cannot be read into a case where it was neither pleaded nor supported by evidence; termination without cause or notice must be characterised as unfair termination under Section 45 of the Employment Act.
  • An appellate court may disturb a discretionary compensatory award under Section 49(4) of the Employment Act where the trial court ignored relevant factors or relied on findings unsupported by evidence.
  • Failure to issue a written contract activates Section 10(7) of the Employment Act, shifting the burden of disproving the employee's averments to the employer, but attracts no separate award of damages.

Court orders

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  1. 1.1 month's salary in lieu of notice: Kshs. 15,000
  2. 2.4 months' salary in compensation: Kshs. 60,000
  3. 3.Service pay for 8 years (15,000/30*15*8): Kshs. 60,000
  4. 4.Total award of Kshs. 135,000 in place of the trial court's award

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 40
  • Employment ActSection 2
  • Employment ActSection 49(4) and 49(4)(g)
  • Employment ActSection 40(1)(g)
  • Employment ActSection 10(7)

Cases cited (2)

  • Selle v Associated Motor Boat Company Ltd
    [1968] E.A 123
  • Kemfro Africa Limited t/a Meru Express Services (1976) & another v Lubia & another (No 2)
    [1985] eKLR
On appeal from
Principal Magistrate's Court (E.M. Kagoni, PM)
Not stated
Jurisdiction invoked
First appellate jurisdiction over the subordinate court in an employment dispute

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, "Zeze v Njoki (Civil Appeal E227 of 2022) [2024] KEELRC 2651 (KLR)", Case Analysis (2024). Civil Appeal No E227 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2651/eng@2024-10-31

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