Nakuru Teachers Training College v Shikopo (Appeal E021 of 2022) [2024] KEELRC 2859 (KLR)
The bottom line
#Kenya's Employment Court cut a cook's unfair termination award from Kshs749,339 to Kshs472,918, but confirmed employers must follow fair procedures and keep proper records.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unfair and unlawful
The termination was unfair and unlawful for lack of substantive and procedural fairness; the respondent was told by the appellant's principal that his services were no longer needed, with no notice or disciplinary hearing, and no records showed resignation or desertion.
The contract of 2nd January 2007 required one month's notice or pay in lieu. There was no notice, no disciplinary hearing, no report to the labour office of resignation or desertion, and it was conceded the respondent had no disciplinary issues. Whimsical or capricious termination is not permitted under the Employment Act, so the trial court's finding stood.
Whether the claims were barred as continuing injuries under Section 89 of the Employment Act
The reliefs constituted continuing injuries and the suit filed within about three months of termination was within the 12-month window.
Relying on Section 89 of the Act and German School Society v Ohany, the court found the non-payment of salary on scale, overtime, leave, off-duty and house allowance created a continuing breach; the cause filed 30th April 2021 after the 5th January 2021 termination was timely.
Whether the quantifications for house allowance, public holidays and overtime were correct
The house allowance award was reduced from Kshs46,972.40 to Kshs44,462.40, public holidays from Kshs49,796.60 to Kshs46,048.44, and overtime from Kshs531,358.10 to Kshs265,377.69, the respondent having erroneously used a night watchman's salary scale.
The court recalculated the awards using the applicable Regulation of Wages (General) (Amendment) Orders 2017 and 2018, the respondent's actual basic pay, and excluding the unpaid-leave period; it found the respondent used a night watchman's pay scale for overtime which did not apply to a cook.
Whether the compensation award of 6 months' salary should be disturbed
No lawful reason to interfere; the trial court exercised its discretion rightly.
Compensation remedies loss of income from unfair termination and is not an avenue for unjust enrichment; the respondent had worked 13 years and the discretionary award of 6 months' salary was proper. The awards for costs and interest were likewise undisturbed.
Legal principles established
#- Reliefs such as underpayment, house allowance, off-duty, annual leave, public holidays and overtime accrue at the end of each month/year and their non-payment constitutes a continuing injury; the 12-month limitation under Section 89 of the Employment Act runs from cessation of the injury.
- Employers are obligated to keep employment records under Sections 10 and 74 of the Employment Act, and failure to produce such records means the employee's uncontroverted assertions stand.
- A first appellate court must evaluate the evidence and reach its own conclusions while bearing in mind it did not hear the witnesses.
Court orders
#- 1.Appeal succeeds to the extent of the substituted awards
- 2.In substitution for the judgment of Kshs749,339.83 by the lower court, judgment entered in favour of the respondent in the sum of Kshs472,918.08 plus interest from 12th October 2022 till payment in full
- 3.Certificate of service be issued by the appellant to the respondent and delivered to his counsel on record within 30 days of the judgment
- 4.Each party shall meet own costs for this appeal
- 5.The order for costs to the respondent (claimant) in the lower court remains and is affirmed
- 6.The award is subject to statutory deductions but shall earn interest from the date of the judgment of the lower court till payment in full
- On appeal from
- Employment and Labour Relations Court (Nakuru, trial)
- Nakuru ELRC CM No. E137 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court/registry decision (not expressly stated in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ndlo & 17 others v Brinks Security Services Limited (Appeal E272 of 2024) [2025] KEELRC 1928 (KLR)[2025] KEELRC 1928 (KLR)30 Jun 2025followed
Cite this brief
#Cite this brief
Caselaw, "Nakuru Teachers Training College v Shikopo (Appeal E021 of 2022) [2024] KEELRC 2859 (KLR)", Case Analysis (2024). Not stated in judgment (appeal from Nakuru ELRC CM No. E137 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2859/eng@2024-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.