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ELRCDismissedMemorandum of Appeal dated 15th January 2024

H Young & Co. (E.A) Ltd v Kobong (Appeal E10 of 2024) [2025] KEELRC 514 (KLR)

Employment and Labour Relations Court
24 February 2025
1,834 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld a 10 months' salary award for unfair termination, confirming that short-serving employees can receive substantial compensation.

What this practically means

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Executive summary

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This was an appeal to the Employment and Labour Relations Court at Nairobi against part of the judgment of Honourable Principal Magistrate C.K Cheptoo delivered on 15th December 2023, in which the trial court found the Claimant's termination failed both the procedural and substantive justification tests and awarded one month's salary in lieu of notice, ten months' salary as compensation for unfair termination, and a certificate of service, with costs and interest. The Appellant challenged only the award of ten months' salary as exorbitantly high given the Respondent's short service of 2 years and 9 months, and prayed for a maximum of three months' compensation, relying on authorities including Kwale International Sugar Company Ltd v Mbaya and Alfred Ogenche Nchore v Kenya Kazi Services Ltd. The Respondent, relying on Mbogo v Shah and D K Njagi Marete v Teachers Service Commission, argued the trial court had properly exercised its discretion under section 49 of the Employment Act and that the fairness of the termination was not challenged. The court applied the Selle v Associated Motor Boat Company principles on first appeals and the Mbogo v Shah test for interfering with judicial discretion. It held that awards must be reasonable and moderated per section 49(4) of the Employment Act, but that the maximum award of 12 months' salary is not a function of length of service alone; the reason and circumstances of the termination govern. Noting the appellant had not demonstrated the Respondent contributed to the termination, the court found the appeal without merit and dismissed it with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court erred by awarding the Respondent 10 months' salary as compensation for unfair termination of service
  2. 2.Whether the award of 10 months' salary compensation was excessive/exorbitantly high

Key legal issues

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01

Whether the appellate court should interfere with the trial court's award of 10 months' salary compensation for unfair termination

Holding

The appeal was dismissed; the trial court's exercise of discretion under section 49 of the Employment Act was not shown to be wrong

Reasoning

The court restated the principles in Mbogo v Shah on interference with judicial discretion and the Selle v Associated Motor Boat Company principles on first appeals. It noted that awards must be reasonable and assessed with moderation per section 49(4) of the Employment Act, considering the circumstances of termination and length of service. Although 10 months appeared high relative to comparable cases, the appellant did not demonstrate the Respondent contributed to the termination, and length of service is not the only factor.

p. 4
02

Whether an award of maximum-band compensation can stand where the employee's length of service is short (2 years 9 months)

Holding

Yes - the maximum award of 12 months' salary is not a function of length of service only; the reason and circumstances of the termination govern

Reasoning

The court reasoned that an employee who recently joined an organization may have taken a career gamble by leaving previous employment, and an egregiously conducted dismissal attracts as much judicial displeasure for a short-serving employee as for a long-serving one. Since the appellant failed to show the Respondent contributed to the termination, the length of service alone could not justify reducing the award.

p. 4

Legal principles established

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  • An appellate court should not interfere with the exercise of judicial discretion unless the judge misdirected himself, arrived at a wrong decision, or is manifestly clearly wrong, resulting in injustice
  • The maximum award of 12 months' salary as compensation for unfair termination is not a function of length of service only; it is determined based on the reason and circumstances of the termination
  • Awards of compensation must be reasonable, assessed with moderation, and take into account section 49(4) of the Employment Act, particularly the circumstances of the termination and the employee's length of service
  • In an appeal from a trial court, the appellate court must reconsider and evaluate the evidence and draw its own conclusions while making due allowance for the fact that it did not see or hear the witnesses

Court orders

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  1. 1.The appeal is found to be without merit and is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Principal Magistrate's Court
not_stated
Jurisdiction invoked
Appellate jurisdiction of the Employment and Labour Relations Court over appeals from the magistrates' courts in employment disputes

Relief refused

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Setting aside of the trial court's award of 10 months' salary compensation for unfair termination

The appellant did not demonstrate that the trial judge misdirected himself or that the award was clearly wrong; the award was an exercise of judicial discretion under section 49 of the Employment Act

p. 4

Finding that the Respondent was not entitled to 10 months' salary compensation

The maximum award is not a function of length of service only; it is determined by the reason and circumstances of the termination, and the appellant did not show the Respondent contributed to the termination

p. 4

Costs of the trial court and of the appeal

Costs awarded against the appellant, not in its favour

p. 4

Costs

Appeal dismissed with costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the upshot and in view of the observations made hereinabove, the Court finds the appeal without merit and the same is hereby dismissed with costs.
p. 4Final orders - dismissal of the appeal with costs
It is so ordered.
p. 4Closing disposition
the maximum award of 12 month’s salary as compensation for unfair termination of service is not a function of the length of service only, though relevant. Such an award is determined based on the reason and the circumstances of the termination.
p. 4Factors governing quantum of compensation under section 49 of the Employment Act
the awards must be reasonable and must be assessed with moderation taking into account the provisions of Section 49(4) of the Employment Act
p. 4Reasonableness and moderation in awards of compensation
A dismissal in a manner so egregious that no reasonable employer would have dared, would attract as much fury from the court, as an employee who has served almost a lifetime and is dismissed under similar circumstances.
p. 4Egregious dismissal and compensation regardless of length of service

Issues in the judgment

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minor

The coram identifies the judicial officer as 'PRESIDING JUDGE-APPEALS DIVISION' rather than a standard rank abbreviation, and the judgment does not state the specific appeal case number of this matter, only the date of the memorandum of appeal

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, "H Young & Co. (E.A) Ltd v Kobong (Appeal E10 of 2024) [2025] KEELRC 514 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 15th January 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/514/eng@2025-02-24

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