Mijengo Investments Limited v Kemunto (Employment and Labour Relations Appeal E040 of 2024) [2025] KEELRC 387 (KLR)

The court re-evaluated the evidence as a first appellate court and found no proof that the Appellant notified the County Labour Office or the Respondent of the intended redundancy at least one month before its taking effect. The letter of 7th July 2022 merely informed the Respondent of immediate termination on grounds of the COVID-19 pandemic. Following Freight In Time Limited v Rosebell Wambui Munene, non-compliance with Section 40(1)(b), (c) and (g) and Section 45 renders the termination unfair and unprocedural.

The Appellant alleged that meetings held in April, May and June 2022 led to a negotiated separation evidenced by a letter and cheque dated 7th July 2022. However, there were no minutes or other documentary proof of such meetings, and the alleged mutual agreement was not pleaded or proved at trial. Applying Sections 107 and 108 of the Evidence Act, the party alleging the agreement bore the burden of proving it and failed to discharge that burden.

Relying on the classic statement in Selle & Another v Associated Motor Boat Co. Ltd. & Others (1968) EA 123, the court restated that an appeal by way of retrial requires the appellate court to reconsider and evaluate the evidence itself and draw its own conclusions, though it is not bound to follow the trial judge's findings of fact where those findings failed to account for particular circumstances or probabilities or are inconsistent with the evidence generally.

Although the appeal was dismissed, the court found the trial court's awards on underpayment, overtime and public holidays unsupported by specifics and set them aside. It substituted one month's salary in lieu of notice (Kshs.8,000), compensation equivalent to 6 months' salary (Kshs.48,000), and enhanced severance pay to the statutory minimum of 15 days' pay per completed year of service for the 6 years worked (Kshs.24,000), totaling Kshs.80,000 with interest at 14% per annum.