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ELRCPartially AllowedNakuru CM ELRC Cause No. E035 of 2020 (Appeal)· [2024] KEELRC 2865 (KLR)

Automobile Association (AA) of Kenya & 3 others v Kahora (Appeal E018 of 2023) [2024] KEELRC 2865 (KLR)

Employment and Labour Relations Court
14 November 2024
DNDavid Nderitu
8,228 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld an employer's retirement notice based on an ID card but cut a worker's award by trimming overtime to proven hours.

What this practically means

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Executive summary

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The respondent was employed by the appellants as a driving instructor from 4th July 2008 under a written contract governed by a collective bargaining agreement. He was retired with effect from 1st July 2020 on the basis of his national identity card indicating a year of birth of 1960, and his claims for various terminal dues were partially successful before the trial magistrate, who awarded Kshs324,463. Both parties appealed: the appellants challenged all heads of the award, while the respondent cross-appealed seeking compensation for unfair termination, notice pay, leave travelling allowances, enhanced transfer allowance, service gratuity, and exemplary damages of Kshs1,500,000 for alleged breach of constitutional rights. The court first held that the cross-appeal, styled as a notice, was properly on record since the repealed 2016 Rules made no provision for cross-appeals and the defect was curable under Article 159(2)(d). On the merits, the court upheld the validity of the retirement notice, finding the employer acted reasonably on the records it held and the respondent ought to have countered the notice with his birth certificate, which he produced only after filing suit. Unpaid salaries for April and June to September 2020, leave days, and the transfer allowance awards were affirmed. However, the court found the trial magistrate erred on overtime, proving only 45 approved hours for November 2019, and reduced that award from Kshs55,106 to Kshs17,587.13. The cross-appeal was dismissed in its entirety. Judgment was substituted at Kshs286,944.13 with interest from 9th June 2023; each party was ordered to bear its own costs of the appeal, and the cross-appeal dismissal carried no order as to costs.

Key legal issues

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01

Validity of the retirement notice based on date of birth

Holding

The retirement notice was valid; the appellants acted reasonably on the available records (national identity card showing year of birth 1960) and the respondent failed to counter the notice with solid evidence such as his birth certificate, which he produced only after filing suit

Reasoning

The court held the employer acted on the records it held and could not be expected to decide otherwise without the birth certificate. The certificate produced post-filing showed a birth date of 28th September 1960, meaning the respondent had reached the CBA retirement age of 60. The retirement was effected with a three-month notice, and the trial court's holding was correct.

p. 10
02

Unpaid salaries April to September 2020

Holding

Trial court's award upheld; absent acceptance of half pay or unpaid leave terms, salary was payable, but only for April (not March, per pleadings) and June to 28th September 2020, the retirement date per the birth certificate

Reasoning

The half-pay letter and unpaid-leave letter were never accepted by the respondent; the partial consent with the union covered only May 2020. No agreement covered later months, so salary accrued to the retirement date of 28th September 2020 established by the unchallenged birth certificate.

p. 11
03

Overtime award

Holding

Award of Kshs55,106 for 141 hours set aside and substituted with Kshs17,587.13 for the 45 approved hours proved for November 2019 only

Reasoning

The employer produced approved overtime sheets for November 2019 showing 45 hours. No evidence or proper pleading supported hours for September and October 2019. The ambiguous pleading failed to shift the burden to the employer to produce specific records for specific dates.

p. 12
04

Whether the cross-appeal was properly on record

Holding

Yes; naming it a notice rather than a memorandum was a curable technicality since the 2016 Rules made no provision for cross-appeals, and it was filed within 21 days of the memorandum of appeal

Reasoning

Under the repealed 2016 Rules there was no cross-appeal provision; the 2024 Rules' form mirrors the memorandum of appeal. Article 159(2)(d) of the Constitution requires substantive justice over technicalities, and the cross-appeal was filed within the statutory 21-day window.

p. 9
05

Leave, transfer allowance, gratuity, exemplary damages and other reliefs

Holding

Trial court's findings on untaken leave (16 days), transfer allowance of Kshs14,520, refusal of gratuity, leave travelling allowances, and exemplary damages all upheld; no basis to interfere

Reasoning

Documents proved 10 days of leave taken leaving 16 days; the transfer allowance under clause 18 of the CBA was payable absent fare receipts; gratuity was barred by the pension; leave travelling allowances and exemplary damages failed for want of proof of dates of travel and of oppressive or discriminatory conduct respectively.

p. 12

Legal principles established

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  • A first appellate court must evaluate the evidence and arrive at its own conclusions while bearing in mind it neither heard nor recorded the trial evidence
  • An employer may reasonably act on the records it holds (such as a national identity card) and is not obliged to go on a fishing expedition for proof of date of birth
  • An overtime claim is special and must be both pleaded and proven; it cannot be inferred
  • Naming a cross-appeal as a notice instead of a memorandum is a procedural technicality curable under Article 159(2)(d) where the old rules made no provision

Court orders

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  1. 1.The appeal partially succeeds to the extent that the award of Kshs55,106 in overtime is set aside and substituted with Kshs17,587.13
  2. 2.Judgment entered in favour of the respondent in the sum of Kshs286,944.13 plus interest from 9th June, 2023 till payment in full
  3. 3.The other awards remain undisturbed and a fresh decree shall issue accordingly
  4. 4.Each party shall meet own costs for this appeal
  5. 5.The cross-appeal is dismissed with no order as to costs
  6. 6.The decretal sum deposited in a joint account shall be released to the respondent subject to necessary adjustments per the fresh decree
  7. 7.The award is subject to statutory deductions

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 21, 27, 28, 30, 40, 41, 51, 57, 159(2)(d)
  • Employment ActSections 9, 10(5), 10(7), 41, 47(5), 49(a), 49(c), 51, 74
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 50, rule 2
  • Employment and Labour Relations Court (Procedure) Rules, No. 146 of 2016 (now repealed)Rule 8
  • Employment and Labour Relations Court (Procedure) Rules, 2024Rule 17
  • Retirement Benefits (Individual Retirement Benefits Schemes) Regulations No. 118 of 2000Rule 7(kk)

Cases cited (9)

  • Simon Waweru Mugo vs Alice Mwongeli Munyao
    (2020) eKLR
  • Daniel Wambugu Ngururi v Teachers Service Commission
    (2020) eKLR
  • Republic v Judicial Service Commission & 2 Others Exparte Erastus M Githinji
    (2019) eKLR; Judicial Review Application 8 of 2019 (formerly HCMA (Judicial Review) 82 of 2019)
  • Njai Mutitu v University of Nairobi
    (2020) eKLR
  • Charles Kombe Charo v East African Portland Cement Company Limited
    (2022) eKLR
  • Mokaya v Kithure Kindiki t/a Kithure Kindiki & Associates
    (Petition 62 of 2019) (2021) KEELRC 1 (KLR)
  • Grinyamwaya vs. Nairobi City Commission
    [1985] eKLR
  • Rookes v Barnard and others
    (1964) AC 1129
  • Selle V Associated Motor Boat Co. Ltd
    (1968) E.A 123
On appeal from
Nakuru Chief Magistrate's Court (ELRC Cause)
E035 of 2020
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court under the Employment and Labour Relations Court (Procedure) Rules; appeal by memorandum dated 27th June, 2023

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, "Automobile Association (AA) of Kenya & 3 others v Kahora (Appeal E018 of 2023) [2024] KEELRC 2865 (KLR)", Case Analysis (2024). Nakuru CM ELRC Cause No. E035 of 2020 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2865/eng@2024-11-14

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