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ELRCPartially AllowedELD ELRC APPEAL NO. E034 OF 2023· [2025] KEELRC 1352 (KLR)

Eldomatt Supermarket Limited v Nagaki (Employment and Labour Relations Appeal E034 of 2023) [2025] KEELRC 1352 (KLR)

Employment and Labour Relations Court
9 May 2025
MOMaureen Onyango
3,893 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld an unfair termination finding against Eldomatt Supermarket but cut several payouts, after finding the employer's fixed term contract was forged.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. Christine Menya in Eldoret CMELRC No. 35 of 2019, which had awarded the Respondent (Claimant below) Kshs. 563,503, costs and interest for unfair termination of his employment as a supermarket line attendant. The Appellant (employer) contended the Claimant served under a six-month fixed term contract from 1st March to 30th August 2018 which lapsed by effluxion of time, and that the awards were baseless and excessive. The appeal was disposed of by written submissions. The court, guided by the first-appeal duty to re-evaluate the evidence, examined the purported contract and found it a forgery: the signatures on its two pages differed (as DW1 admitted in cross-examination), it lacked an ID number and date of execution, and referenced unproduced documents. NSSF records showed contributions from November 2016 to August 2018, inconsistent with a six-month contract. The contract failing, the employer had no justification for the termination, and the finding of unfair termination was upheld. On quantum, the court set aside the notice award of Kshs. 18,518 and substituted Kshs. 13,715.40; reduced leave pay from Kshs. 64,411 to Kshs. 38,532; reduced compensation from 12 to 6 months' gross pay (Kshs. 82,292.40); corrected rest days to Kshs. 75,228.10; and set aside underpayment since the salary matched the statutory minimum wage. Each party was ordered to bear its own costs of the appeal; the lower court costs order was left undisturbed.

Key legal issues

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01

Validity of the purported fixed term contract

Holding

The contract was not genuine and could not sustain a defence of effluxion of time

Reasoning

The court compared the signatures on the contract with the Respondent's known signatures, noted DW1's admission that the signatures on the two pages differed, the blank ID number field, the missing date of execution, and unproduced documents referenced in the contract. The NSSF statement showed contributions from November 2016 to August 2018, longer than the six months the contract covered, corroborating that the contract was manufactured for the proceedings.

p. 6
02

Whether the termination was unfair

Holding

Unfair - the employer gave no justification and proved no fair procedure

Reasoning

Having found the fixed term contract invalid, the Appellant had no explanation for the termination. There was no proof of compliance with sections 41, 43 and 45 of the Employment Act. The Respondent's account - that he was dismissed after taking permitted leave to take his sick brother to hospital - stood unchallenged.

p. 7
03

Quantum of terminal dues

Holding

Several awards were excessive or wrongly computed and were varied

Reasoning

The court recalculated notice pay at the correct gross salary of Kshs. 13,715.40, reduced leave to 84 days based on basic pay, reduced compensation from 12 to 6 months' salary having regard to section 49(4) factors and the Respondent's short service, corrected the rest days award to Kshs. 75,228.10 based on basic wage, and set aside underpayment because the salary matched the applicable statutory minimum wage.

p. 7
04

Burden of proof on employment records

Holding

The employer bore and failed to discharge the burden of disproving leave, rest day and underpayment claims

Reasoning

Sections 10 and 74 of the Employment Act require the employer to keep records and produce them. The Appellant produced no leave records and the payslips produced did not show payment for rest days, so the trial court's awards on those heads stood, subject to correction of the computation basis.

p. 7

Legal principles established

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  • On a first appeal the court must re-evaluate the evidence adduced before the trial court and draw its own conclusions, bearing in mind it did not hear or see the witnesses
  • Under sections 10(7) and 74 of the Employment Act, where an employer fails to produce a written contract or statutory records, the burden of proving or disproving an alleged term of employment falls on the employer
  • Compensation for unfair termination must be proportionate to length of service and relevant factors under section 49(4) of the Employment Act; maximum compensation is not automatic

Court orders

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  1. 1.Set aside the award of Kshs. 18,518 in lieu of notice and substitute therefor Kshs. 13,715.40
  2. 2.Set aside the leave award of Kshs. 64,411 and replace it with Kshs. 38,532 (84 days' leave based on basic pay)
  3. 3.Set aside the compensation award of Kshs. 193,233 (12 months) and substitute an award of Kshs. 82,292.40 being six months' gross pay
  4. 4.Upheld the award for rest days but corrected the tabulation to Kshs. 75,228.10 based on basic wage of Kshs. 11,926.40
  5. 5.Set aside the award on underpayments as the Respondent was paid the applicable statutory minimum wage
  6. 6.Upheld the finding that the termination of employment was unfair
  7. 7.Ordered that each party shall bear its own costs of the appeal
  8. 8.Left the award on costs in the lower court undisturbed

Authorities

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Legislation

  • Employment Act, 2007sections 9, 10, 10(2), 10(7), 41(1) and (2), 43, 44(4), 45(2), 49(1)(a), (b) and (c), 49(4), 51, 74
  • Regulation of Wages (General) Orderparagraphs 6 (overtime), 7 (weekly rest), 8 (holidays with full pay), Fourth Schedule
  • Regulation for Wages Amendment Order, 2018gazetted 19th December 2018

Cases cited (7)

  • Selle & Another v Associated Motor Boat Company Ltd & Others
    [1968] EA 123
  • Dan Caxton Undusu v The Jubilee Insurance Company of Kenya Limited
  • Margaret A. Ochieng v National Water and Conservation Corporation
    [2014] eKLR
  • Francis Odero Okello v Kenya Power and Lighting Company
    [2019] eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    Civil Appeal No. 127 of 2015
  • CMC Aviation Limited v Mohammed Noor
  • Ol Pajeta v David Wanjau Muhoro
    [2017] eKLR
On appeal from
Eldoret Chief Magistrate's Employment and Labour Relations Court
CMELRC No. 35 of 2019
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (Employment and Labour Relations Court Act; the judgment invokes the first-appeal duty to re-evaluate evidence)

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, "Eldomatt Supermarket Limited v Nagaki (Employment and Labour Relations Appeal E034 of 2023) [2025] KEELRC 1352 (KLR)", Case Analysis (2025). ELD ELRC APPEAL NO. E034 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1352/eng@2025-05-09

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