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ELRCPartially AllowedNot stated in the judgment· [2025] KEELRC 651 (KLR)

Abdulla & another v Ngome (Employment and Labour Relations Appeal E135 of 2023) [2025] KEELRC 651 (KLR)

Employment and Labour Relations Court
27 February 2025
OKOcharo Kebira
3,130 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld an unfair dismissal award but slashed the compensation and rejected unproven claims for overtime, holidays and severance pay.

What this practically means

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Executive summary

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The Respondent sued the Appellants claiming he was their general worker (grave digger and cemetery guard) from January 2015 until 8th February 2020 when his employment was verbally terminated. He sought twelve months' compensation for unfair termination, notice pay, salary arrears, severance pay, leave, public holiday and overtime claims, underpayment, and a certificate of service. The trial magistrate found the termination wrongful, unfair and unlawful and awarded all reliefs sought wholesale. The Appellants appealed on twenty grounds condensed into three: whether the claimant was their employee, whether termination was unfair, and whether the reliefs were properly awarded. The Court applied the Selle retrial principles. It held that the question of the Appellants' representative capacity could not be reopened because the ruling dismissing their striking-out application was not appealed. On the pleadings, the Court found evasive denials amounting to admissions, and held the Appellants were the employers. It found the termination procedurally and substantively unfair, as the Appellants failed to prove compliance with section 41 of the Employment Act or valid reasons under sections 43 and 45. However, the Court faulted the trial magistrate for awarding all reliefs in a generalised manner and re-evaluated each head: compensation was reduced to six months' gross salary (KShs. 77,556); notice pay, eight days' salary and leave compensation were upheld; but severance pay, public holiday allowances, overtime and underpayment claims were refused for lack of evidence or legal foundation. The appeal succeeded partially, the trial judgment was set aside to that extent, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Appellants were the Respondent's employers

Holding

They were, as their pleadings were evasive and contained an admission of employer status

Reasoning

The Court examined the Statement of Response and found that paragraph 13 admitted employer status. The Appellants, claiming to be mere volunteers, failed to produce records from the Registrar of Societies showing the office bearers or any document demonstrating volunteer status. Evasive denials were treated as admissions, so the trial magistrate did not err in finding an employment relationship.

p. 4
02

Whether the termination was procedurally and substantively fair

Holding

It was unfair; the Appellants proved neither procedural compliance nor valid reasons

Reasoning

Section 41 of the Employment Act prescribes a mandatory procedure: informing the employee of the grounds, according an opportunity to be accompanied and make representations, and considering those representations. Section 43(1) places the burden of proving reasons on the employer. Blurred by their denial of employment, the Appellants led no sufficient evidence on either limb.

p. 5
03

Whether all reliefs sought were properly awarded wholesale by the trial court

Holding

No; each relief had to be assessed on its own merits, and several were unmerited

Reasoning

The trial magistrate's generalised award was erroneous because different reliefs require different legal provisions and factors. The Court re-evaluated each head: compensation reduced to six months, notice pay and eight days' salary upheld, leave compensation upheld, but severance, public holidays, overtime and underpayment claims failed for lack of evidentiary or legal foundation.

p. 5
04

Whether the appeal could revisit the ruling on the striking-out application

Holding

No; the interlocutory ruling was not appealed and became final

Reasoning

The trial magistrate's ruling of 18th February 2022 dismissed the striking-out application on its merits. The Appellants did not appeal against it within time or at all, and the ruling did not merge into the final judgment. Reopening the issue in this appeal would offend the doctrine of finality of decisions.

p. 4

Legal principles established

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  • Evasive pleadings and denials may be treated as admissions of the truth of the adversary's allegations
  • An employer must prove both substantive justification and procedural fairness for a termination to pass the fairness test
  • Non-compliance with the mandatory procedure in section 41 of the Employment Act renders termination unfair under section 45(2)
  • Reliefs in employment claims must be assessed individually, not granted in a generalised manner

Court orders

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  1. 1.Appellants to pay the Respondent six months' gross salary as compensation for unfair termination pursuant to section 49(1)(c) of the Employment Act - KShs. 77,556.00
  2. 2.Notice pay - KShs. 12,962.55
  3. 3.Salary for 8 days worked in February 2020 - KShs. 4,924.00
  4. 4.Compensation for earned but untaken leave days - KShs. 45,242.925
  5. 5.Appellants to issue the Respondent with a certificate of service within 30 days of the Judgment
  6. 6.Interest on the sums awarded at court rates from the date of Judgment till full payment
  7. 7.Each party to bear its costs

Authorities

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Legislation

  • Societies Act, CAP 108-
  • Societies ActSection 41[2]
  • Employment ActSections 35, 36, 40, 41, 43(1), 45, 45[2], 49[1][c]
  • Labour Institutions ActSection 48

Cases cited (3)

  • Selle v Associated Motor Boat Company Ltd
    [1968] E.A 123
  • Walter Ogal Anuro –v- Teachers Service Commission
    (2013) eKLR
  • Janet Nyandiko versus Kenya Commercial Bank Limited
    [2017] eKLR
On appeal from
Lower Court (magistrates' court, employment claim)
Not stated
Jurisdiction invoked
First appellate jurisdiction over the trial court's judgment (appeal on law and fact)

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, "Abdulla & another v Ngome (Employment and Labour Relations Appeal E135 of 2023) [2025] KEELRC 651 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/651/eng@2025-02-27

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