West Kenya Sugar Company Limited v Odima (Appeal E010 of 2024) [2025] KEELRC 355 (KLR)
The bottom line
#A Kenyan court cut a sacked worker's award from Kshs 1.3 million to about Kshs 421,560 because key claims were filed too late under the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Nature of the employment relationship
The respondent, initially engaged on a six-month fixed-term contract on 24th May 2013, continued working without renewal for seven years, converting to indefinite month-to-month employment protected from arbitrary dismissal.
The court evaluated the record afresh as first appellate court, guided by Selle v Associated Motor Boat Co. The respondent was paid monthly per pay-slips, worked continuously from 2013 to 2020, was transferred internally in 2017 without a new contract, and was issued show-cause letters for attendance breaches. RW1 confirmed he continued on the same terms after contract expiry. Following Krystalline Salt, Section 37 converted the engagement.
Whether the termination was unfair and unlawful
The termination was unfair and unlawful; the respondent, a month-to-month employee, was entitled to 28 days' notice under Section 35(1) and due process, neither of which was accorded.
The appellant contended the contract lapsed by effluxion of time, but the court found no fixed-term contract subsisted up to 30th June 2020. The notice dated 29th June 2020 required the respondent not to report on 30th June, effectively a one-day notice. As a regular employee, the respondent was entitled to 28 days' notice, a reason and procedural fairness; the trial court's finding on unfairness was affirmed.
Limitation of the underpayment claims
The salary and house allowance underpayment claims were statute-barred under Section 89 of the Employment Act and the awards were set aside.
The court raised limitation suo moto, holding it a jurisdictional issue. Underpayment accrued monthly and constituted a continuing injury; such claims must be filed within 12 months of cessation of the injury. The respondent was terminated on 30th June 2020 but filed on 14th October 2021, one year, three months and 14 days later, outside the statutory window, so the trial court assumed jurisdiction it did not have.
Re-computation of notice pay and compensation
Notice pay substituted with Kshs28,500 (one month's basic salary as pleaded) and compensation substituted with 12 months' gross salary of Kshs393,060 based on the last gross pay of Kshs32,775.
The CBA clause 9(b) entitled employees with over five years' service to two months' notice pay, but the respondent pleaded only one month, which the trial court could not exceed. On compensation, Section 49(1)(c) requires calculation on the gross monthly wage at the time of dismissal; the trial court's use of various historical salaries was unlawful. Considering Section 49(4) factors, maximum compensation of 12 months' gross salary was appropriate since the respondent did not contribute to the dismissal.
Legal principles established
#- Where an employee on a fixed-term contract continues working after expiry without a new contract, the employment converts by operation of law under Section 37 of the Employment Act, protecting the employee from arbitrary dismissal.
- Limitation under Section 89 of the Employment Act is an issue of jurisdiction that a court must address even suo moto; claims for continuing injury must be filed within 12 months of cessation.
- Compensation for unfair termination under Section 49(1)(c) must be calculated on the employee's gross monthly wage or salary at the time of dismissal, capped at 12 months.
Court orders
#- 1.The appeal succeeds to the extent that the award of Kshs898,760/= for salary underpayment and Kshs101,776/= for unpaid house allowance is set aside
- 2.In substitution for the judgment of Kshs1,301,029/=, judgment entered in favour of the respondent in the sum of Kshs421,560/= subject to statutory deductions (one month's salary in lieu of notice Kshs28,500/= and compensation for unfair termination Kshs393,060/=)
- 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.The award of costs to the respondent by the lower trial court shall remain
- 5.Each party shall meet own costs for this appeal
- On appeal from
- Senior Principal Magistrate's Court (Kakamega, ELRC Cause No. 75 of 2021)
- Kakamega ELRC Cause No. 75 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's judgment under the Employment Act framework (appeal by memorandum of appeal); Section 89 and Sections 35, 37, 45, 46, 49 and 51 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "West Kenya Sugar Company Limited v Odima (Appeal E010 of 2024) [2025] KEELRC 355 (KLR)", Case Analysis (2025). Appeal against judgment in Kakamega ELRC Cause No. 75 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/355/eng@2025-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.