Dakawou Transport Limited v Kithuku (Appeal E060 of 2024) [2025] KEELRC 452 (KLR)
The bottom line
#A Kenyan court cut an employee's compensation from 12 months to 3 but confirmed the dismissal was unfair because the employer couldn't prove its case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondent resigned or was unfairly terminated from employment
- 2.Whether the letter of resignation, not produced in original form, could sustain a finding of resignation
- 3.Whether the award of 12 months' compensation was justified
- 4.Whether the awards for leave pay, house allowance, public holidays and overtime were justified
Key legal issues
#Resignation versus unfair termination
The alleged resignation was not proved; the original letter was never produced, so the respondent's account of unfair termination stands
The respondent contested the letter of resignation, which was not part of the record. The trial court stood down the witness to produce the original but the appellant closed its case without doing so. The authenticity of the resignation letter remained unresolved and was not addressed in the trial judgment. In the absence of proof of resignation, the respondent's version that he was directed to leave for poor performance prevails.
Procedural fairness under Sections 41, 43 and 45
The mandatory provisions of Sections 41, 43 and 45 of the Employment Act were not adhered to, resulting in unfair termination
Where poor performance is alleged, the employer must prove measures taken to support the employee. No such evidence was adduced before the trial court. Termination for poor performance without due process under Sections 41, 43 and 45 was therefore unfair, and notice pay of Ksh.27,000 was justified.
Quantum of compensation under Section 49
The maximum 12 months' compensation was excessive; 3 months (Ksh.81,000) was appropriate
The trial court's discretion to award the maximum was not judicially exercised as no rationale was given. Maximum compensation is reserved for callous or bad-faith conduct. The respondent was paid terminal dues on cessation, worked only 3 years, and no record under Section 45(5) was filed. Three months' compensation was accordingly substituted.
Leave, public holidays, house allowance and overtime
Leave pay of Ksh.29,700 for 33 days and public holiday pay of Ksh.31,153.80 awarded; house allowance and overtime claims declined
No work records were filed on leave, and the employer bears the statutory duty to keep records; leave accumulation is capped at 18 months, yielding 33 days. Public holiday days were particularized and justified. House allowance and overtime failed because the consolidated wage exceeded the minimum wage plus house allowance, and such claims are continuing injuries time-barred under Section 89.
Legal principles established
#- Resignation is a valid mode of terminating employment, but the employer is bound to accept the notice subject to notice period, payment in lieu, or Section 36 mutual separation
- Where an employer alleges poor performance, the burden lies on the employer to prove measures taken to support the employee to improve
- Maximum compensation of 12 months under Section 49 is reserved for callous, malicious or bad-faith employer conduct
- The legal duty to keep and file employment records rests on the employer under Sections 10(6) and (7) of the Employment Act
- House allowance and overtime claims are continuing injuries which must be addressed within 12 months from cessation under Section 89
Court orders
#- 1.Employment terminated unfairly
- 2.Compensation Ksh.81,000
- 3.Notice pay Ksh.27,000
- 4.Leave pay Ksh.29,700
- 5.Certificate of service
- 6.Costs of proceedings before the trial court as awarded to the respondent
- 7.For the appeal, each party bears its costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (ELRC), Mombasa
- CMELRC No. E393 of 2021
- Jurisdiction invoked
- First appeal from the subordinate court under the Employment and Labour Relations Court framework
Relief refused
#12 months' compensation reduced to 3 months
Trial court gave no rationale for maximum award; employer paid terminal dues on cessation and the respondent worked only 3 years
House allowance claim
Respondent was paid above the minimum wage plus house allowance under the applicable Wage Orders
Overtime claim
Not credible that one works nonstop for 3 years; consolidated wage exceeded the minimum and compensated for labour; also time-barred as continuing injury
Interest on the award
No interest payable under Section 12(4) of the ELRC Act unless the claim is liquidated
Costs
Costs of proceedings before the trial court as awarded to the respondent; for the appeal, each party bears its own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Indeed, a resignation is a valid mode of terminating employment. The employer is bound to accept the notice subject to the employee serving a notice period, payment in lieu thereof or application of Section 36 of the Employment Act
The alleged notice of resignation was not produced or addressed with a conclusion. The facts, as stated by the respondent, stand.
The award of 12 months compensation is reserved for instances where the employer's conduct has been callous, actuated by ulterior motives, malicious or in bad faith.
In this case, the mandatory provisions of Sections 41, 43 and 45 of the Employment Act were not adhered to. This resulted in unfair termination of employment.
Accordingly, the judgment in Mombasa CMELRC E393 of 2021 is hereby reviewed in the following terms; a. Employment terminated unfairly; b. Compensation Ksh.81,000; c. Notice pay Ksh.27,000; d. Leave pay Ksh.29,700; e. Certificate of service; f. Costs of proceedings before the trial court as awarded to the respondent; g. For the appeal, each party bears its costs.
Issues in the judgment
#Case number of the present appeal before the ELRC is not expressly stated; only the trial court number (Mombasa CMELRC No. E393 of 2021) is given
Award of interest is denied yet the trial court's award included interests from the date of filing suit; no express reversal of the interest component appears in the final orders
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.
- Oburo v Frodak Kenya Limited (Appeal E025 of 2024) [2025] KEELRC 2353 (KLR)[2025] KEELRC 2353 (KLR)28 May 2025
Cite this brief
#Cite this brief
Caselaw, "Dakawou Transport Limited v Kithuku (Appeal E060 of 2024) [2025] KEELRC 452 (KLR)", Case Analysis (2025). Mombasa ELRC Appeal arising from CMELRC No. E393 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/452/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.