West Kenya Sugar Company Limited v Dominiko (Appeal E003 of 2024) [2025] KEELRC 357 (KLR)
The bottom line
#Kenya's Employment Court cut a worker's award from Kshs1.4 million to Kshs370,500, ruling late claims are time-barred but fixed-term workers who keep working become permanent employees.
What this practically means
#Executive summary
#Key legal issues
#Nature and classification of the employment relationship
The respondent's employment converted from fixed-term to permanent/month-to-month terms after he worked without a contract from July 2018 to August 2019; the later fixed-term contract was an unlawful attempt to circumvent the law.
The respondent worked for three years and 11 months. After the second contract lapsed he worked over a year without any contract, and a new fixed-term contract was only issued later. Following Kenyatta University v Maina, using consecutive fixed-term contracts to avoid statutory protections violates Article 41. The court found the conversion to permanent terms and no reason to disturb the magistrate's finding.
Whether termination was unfair and unlawful
Yes - the converted (permanent) employment entitled the respondent to notice and due process under Sections 35 and 45 of the Act, which were not accorded.
Having found the employment had converted to permanent terms, the respondent was entitled to 28 days' notice under Section 35(1), a reason for termination and due process. Instead he was terminated on one-day notice by purported non-renewal of a lapsed contract. The termination was therefore unfair and unlawful, warranting notice pay and Section 49 compensation.
Limitation of the underpayment and house allowance claims
The awards of salary underpayment and unpaid house allowance were statute-barred under Section 89 of the Employment Act and set aside.
Underpayments accrued monthly and constituted a continuing injury; Section 89 requires continuing-injury claims to be filed within 12 months of cessation. Termination was 30th June 2020 and the cause was filed 23rd December 2021, about 17 months later. Jurisdiction over a time-barred claim cannot be assumed, so the trial court erred in awarding those reliefs.
Quantum of compensation under Section 49(1)(c)
Compensation must be based on the last gross monthly salary; the court substituted Kshs196,308 with Kshs342,000 (12 months x Kshs28,500).
The Supreme Court in Kenfreight held awards are capped at 12 months' gross salary guided by Section 49(4). The trial court used varying historical salaries contrary to Section 49(1)(c). Considering the respondent's length of service, the employer's fault, and that compensation remedies loss rather than enriching, 12 months' gross pay at Kshs28,500 was appropriate.
Notice pay quantum
Notice pay of Kshs47,185 substituted with Kshs28,500, the respondent's actual consolidated basic salary, since only one month was pleaded.
The trial court erred in the computation of notice pay. Because the claim was pleaded as one month's salary in lieu of notice and was not amended, only one month's basic salary could be awarded. With the underpayment claim statute-barred, the correct figure was the last consolidated basic salary of Kshs28,500 per the June 2020 payslip.
Legal principles established
#- Where a fixed-term employee continues working without a renewed contract after its lapse, the employment converts to month-to-month/permanent terms; issuing a fresh fixed-term contract after over a year of uncontracted service is an unfair labour practice contrary to Article 41 of the Constitution.
- Claims for salary underpayments and unpaid house allowance constitute continuing injuries which must be filed within 12 months of cessation under Section 89 of the Employment Act; a court has jurisdiction to raise limitation suo moto.
- Compensation under Section 49(1)(c) of the Employment Act must be computed on the employee's last gross monthly salary at the time of dismissal.
- A first appellate court must re-evaluate the evidence and draw its own conclusions while bearing in mind it did not see or hear the witnesses.
Court orders
#- 1.The award of Kshs898,760 for salary underpayment and Kshs264,235.80 for unpaid house allowance is set aside
- 2.Judgment entered in favour of the respondent in the sum of Kshs370,500/= subject to statutory deductions, comprising one month's salary in lieu of notice (Kshs28,500) and compensation for unfair termination (Kshs28,500 x 12 = Kshs342,000)
- 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
- Kakamega ELRC (trial court, SPM)
- Kakamega ELRC Cause No. 88 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over the ELRC trial cause (Employment and Labour Relations Court appellate review of a subordinate court's judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "West Kenya Sugar Company Limited v Dominiko (Appeal E003 of 2024) [2025] KEELRC 357 (KLR)", Case Analysis (2025). ELRC Appeal (Kakamega) - appeal from Kakamega ELRC Cause No. 88 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/357/eng@2025-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.