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 AllowedNot stated in judgment· [2024] KEELRC 2710 (KLR)

Riley Falcon Security Limited v Simiyu (Appeal E011 of 2024) [2024] KEELRC 2710 (KLR)

Employment and Labour Relations Court
31 October 2024
MMM. Mbarũ
2,560 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

#

Kenya's Employment Court confirmed that inviting a fixed-term worker to reapply creates an expectation of renewal, but slashed the compensation award because the magistrate gave no reasons.

What this practically means

#

Executive summary

#
This is a first appeal to the Employment and Labour Relations Court at Mombasa (M. Mbarũ, J) against the judgment of 20 March 2024 in Malindi MCELRC E015 of 2022, in which the learned magistrate found unfair termination of a security guard and awarded notice pay, 12 months' compensation, two years' leave pay, uniform refund, a certificate of service and costs. The appellant employer appealed on nine grounds, principally that a fixed-term contract ends on its terms without notice, that leave was taken, and that the maximum compensation award was excessive and unjustified. The court, applying the retrial principles for a first appeal, found that although the second contract ran to 27 October 2021, the employer's letter of 28 October 2021 inviting the respondent to reapply for his position was sent to the employer's own Nairobi postal address and never reached him, and the employer failed its statutory duty under Section 9(4) of the Employment Act to explain contractual provisions in a language the employee understood. The invitation to reapply generated a legitimate expectation of renewal; the resulting loss of employment was an unfair labour practice contrary to Article 41 of the Constitution and Sections 35, 41 and 45 of the Employment Act. The court upheld unfair termination and notice pay but reduced compensation from 12 months to three months (Ksh.54,436.68) because the magistrate gave no reasons for the maximum award. The appellant's leave records were found manipulated and inauthentic, so the two-year leave award of Ksh.28,075.96 was confirmed, as was the off-days award of Ksh.5,784, uniform refund and certificate of service. The appeal partially succeeded; each party bears its own costs of the appeal, with trial court costs as awarded but without interest.

Key legal issues

#
01

Whether expiry of a fixed-term contract, coupled with an invitation to reapply, amounts to unfair termination

Holding

Yes - the employer's invitation to reapply created a legitimate expectation of renewal, and sending the notice to the wrong address and failing to explain it in a language the employee understood resulted in unfair labour practices and unfair termination contrary to Sections 35, 41 and 45 of the Employment Act

Reasoning

The court found the letter dated 28 October 2021 requiring reapplication was sent to the employer's own postal address, not the respondent's, so it never reached him. The respondent was not well-versed in English and the employer failed its duty under Section 9(4) to explain the contract in a language he understood. These lapses denied him a fair chance to renew the contract he had held without a poor work record, amounting to unfair termination.

p. 4
02

Whether the 12 months' maximum compensation award was justified

Holding

No - reduced to three months' gross wage (Ksh.54,436.68) because the magistrate gave no reasons for the maximum award

Reasoning

Relying on Postal Corporation of Kenya v Andrew K. Tanui and Ol Pejeta Ranching Limited v David Wanjau Muhoro, the court held discretion must be exercised on sound judicial principles with stated reasons. The respondent had worked his first contract successfully and was denied a fair chance at renewal, justifying three months' compensation based on his gross wage of Ksh.18,145.56.

p. 5
03

Whether the leave pay award for two years was justified

Holding

Yes - the appellant's work records on leave lacked authenticity and were manipulated, so the claim for two years' leave at the last basic wage was upheld

Reasoning

The court found a huge disparity between the leave application form dated 30 October 2021 and the clearance record of the same date, indicating manipulation. The records lacked authenticity on their face. The respondent's claim for two years' annual leave was therefore allowed at Ksh.14,037.98 x 2 = Ksh.28,075.96.

p. 5
04

First appeal principles

Holding

A first appeal is by way of retrial; the court must reconsider and evaluate the evidence while making due allowance for not having seen or heard the witnesses

Reasoning

Applying Selle v Associated Motor Boat Co and Williamson Diamonds v Brown, the court restated that it is not bound by the trial court's findings of fact and may draw its own conclusions from the record.

p. 3

Legal principles established

#
  • Where an employer invites the employee to apply for renewal of a fixed-term contract, a legitimate expectation of renewal arises and failure to facilitate a proper application amounts to unfair labour practice
  • An employer must explain a contract of service to an employee who cannot understand the language in which it is written
  • An award of maximum compensation for unfair termination must be supported by reasons and justification
  • Costs in employment and labour relations claims are not automatic and must be justified under Section 12(4) of the ELRC Act

Court orders

#
  1. 1.Judgment in Malindi MCELRC E015 of 2022 set aside and substituted
  2. 2.Finding that employment was terminated unfairly
  3. 3.Compensation of Ksh.54,436.68 (three months' gross wage)
  4. 4.Notice pay Ksh.18,145.56
  5. 5.Leave pay Ksh.28,075.96
  6. 6.Uniform refund Ksh.6,000
  7. 7.Off days Ksh.5,784
  8. 8.Certificate of service to be issued
  9. 9.Each party bears its own costs for the appeal; costs for the trial court as awarded save no interests are due

Authorities

#

Legislation

  • Employment ActSection 35
  • Employment ActSection 41
  • Employment ActSection 45
  • Employment ActSection 9(4)
  • Employment ActSection 10(6) and (7)
  • Employment ActSection 51
  • Employment and Labour Relations Court ActSection 12(4)
  • Constitution of KenyaArticle 41

Cases cited (11)

  • Johnstone Luvusia v All Pack Industries Limited
    [2019] eKLR
  • Ibrahim Ulalo v Nation Media Group
    [2024] eKLR
  • CMC Aviation Limited v Mohamed Noor
    [2015] eKLR
  • John Njoroge Wanjilu v Aldonai Enterprises Limited Cause No. 26 of 2020 (Mombasa)
  • Kenya Revenue Authority v Menginya Salim Murgani
    [2010] eKLR
  • Robi Stephen Nyamohanga v Judicial Service Commission
    [2017] eKLR
  • Selle and Another v Associated Motor Boat Company Limited and others
    [1968] EA 123
  • Williamson Diamonds Ltd. V. Brown
    [1970] E.A.L.
  • Nanyuki Water & Sewage Company Limited v Benson Mwiti Ntiritu, Anthony Kibuchi Muriuki, Moses Bundi Nkanata, Jesee Waweru Kiama & Joram Gatara Macharia
    [2018] KECA
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] KECA
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
On appeal from
Employment and Labour Relations Court, Malindi
Malindi MCELRC E015 of 2022
Jurisdiction invoked
First appellate jurisdiction of the Employment and Labour Relations Court over decisions of the magistrates' court in employment matters

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Riley Falcon Security Limited v Simiyu (Appeal E011 of 2024) [2024] KEELRC 2710 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2710/eng@2024-10-31

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