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ELRCPartially AllowedMemorandum of Appeal dated 21st November, 2023· [2025] KEELRC 815 (KLR)

Tile and Carpet Centre Limited v Mogaka (Appeal E014 of 2023) [2025] KEELRC 815 (KLR)

Employment and Labour Relations Court
26 February 2025
DMD. K. Njagi Marete
1,686 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 cut an unfair dismissal award from 12 months' pay to 6, confirming employee misconduct justifies lower compensation.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court against a magistrate's judgment awarding the Respondent Kshs.1,164,445.00 for unfair, wrongful and unlawful dismissal from employment. The Appellant, the former employer, advanced nine grounds of appeal, principally that the magistrate awarded unpleaded figures, failed to find substantive reasons for summary dismissal, made an excessive award of twelve months' salary in lieu of notice contrary to section 49(1) of the Employment Act, and wrongly awarded gratuity not provided for in the contract. The Appellant relied on United States International University vs Eric Roding Outa and Ol Pejeta Ranching Limited vs David Waniau Muhoro on the need to justify maximum awards. The Respondent maintained the dismissal was unfair, arguing the Appellant violated section 9(2) of the Employment Act by failing to provide a written contract, and that the invitation to the disciplinary meeting was not a notice to show cause, denying the Respondent an opportunity to respond to the allegations in writing. The court agreed the twelve months' award was excessive and unexplained, noting the Respondent won on a procedural technicality but was a defaulter in his conduct as an employee. It also held the gratuity award unjustified since the contract made no provision for it and the Respondent was registered with the NSSF. The appeal was partially allowed: the award was reduced to one month's salary in lieu of notice (Kshs 52,918.00) and six months' compensation (Kshs 317,508.00), totalling Kshs.370,426.00, the Appellant was ordered to issue a certificate of service within thirty days, all other awards fell away, and each party was to bear its own costs.

Key legal issues

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01

Whether the maximum award of twelve months' compensation was justified

Holding

The award was excessive, unexplained and unjustified; the court reduced it to six months' compensation and one month's salary in lieu of notice

Reasoning

The court agreed with the Appellant that the twelve months' award did not satisfy the criteria in section 49(1) of the Employment Act. The Respondent won on a technical flaw in the disciplinary procedure but was a defaulter in his conduct as an employee, had a prior warning and monitoring period, and did not appeal the termination. These factors justified interfering with the award and reducing it.

p. 4
02

Whether the Respondent was entitled to gratuity

Holding

The award of gratuity was not justified and was set aside

Reasoning

The contract of employment between the parties did not provide for gratuity. The Respondent was not a member of any collective bargaining agreement and was registered with the National Social Security Fund, to which the employer made contributions. Even absent these factors, the court found the Respondent was not a deserving case for gratuity.

p. 4

Legal principles established

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  • An employee's contributory misconduct is a critical factor in determining the amount and extent of compensation for unfair termination under section 49 of the Employment Act
  • Gratuity is only awardable where the contract of employment or a collective bargaining agreement provides for it, and not where the employee is registered with the NSSF

Court orders

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  1. 1.One (1) month salary in lieu of notice of Kshs 52,918.00
  2. 2.Six (6) months compensation for unlawful termination of employment of Kshs 317,508.00, total award Kshs.370,426.00
  3. 3.The Appellant to issue the Respondent with a certificate of service within thirty (30) days
  4. 4.All other awards to fall away

Authorities

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Legislation

  • Employment Act, 2007section 49(1)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 9(2) and (3)

Cases cited (2)

  • United States International University vs Eric Roding Outa
    (2016) eKLR
  • Ol Pejeta Ranching Limited vs David Waniau Muhoro
    [2017] eKLR
On appeal from
Magistrates' Court
Jurisdiction invoked
First appeal from the magistrate's court in an employment claim under the Employment Act, 2007

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, "Tile and Carpet Centre Limited v Mogaka (Appeal E014 of 2023) [2025] KEELRC 815 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 21st November, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/815/eng@2025-02-26

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