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ELRCDismissedMemorandum of Appeal dated 2nd July 2024 (from Nyeri E.RC Case No. 37 of 2022)

Ihururu Housing Investment Co-operative Society Ltd v Wangari (Employment and Labour Relations Appeal E014 of 2024) [2025] KEELRC 1453 (KLR)

Employment and Labour Relations Court
15 May 2025
3,459 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan estate lost its appeal and must pay a former caretaker Kshs.58,000 because even unwritten, informal employment deserves legal protection and fair termination procedures.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Nyeri against a judgment of the Chief Magistrate's Court (Nyeri E.RC Case No. 37 of 2022, Hon. Lubia SRM) which found that the respondent had been employed by the appellant as a caretaker of Blue Valley Estate from April 2018 to June 2020 under an oral contract at a monthly salary of Kshs.10,000, and that her June 2020 termination was unfair, awarding her three months' salary as compensation, one month's salary in lieu of notice and service pay of Kshs.18,000, totalling Kshs.58,000 plus costs and interest. The appellant contended the respondent was a mere tenant, that no employment contract existed, and that the trial magistrate wrongly nullified a Rent Restriction Tribunal judgment. On appeal, adopting the retrial mandate of Selle v Associated Motor Boat Company Ltd, Makau J held that an oral or implied contract of service suffices under section 2 of the Employment Act; the hiring officials were not called to rebut the respondent's evidence, PW2 and PW3 corroborated her caretaker duties, and the Mwalimu Agencies letter demanding surrender of records and notifying redundancy was unrebutted. The court further held that the termination, being a redundancy, was unlawfully effected without the section 40 procedure and was therefore unfair under section 45. The award of Kshs.58,000 was found reasonable and undisturbed. The respondent's request, made only in submissions, for enhanced awards (12 months' compensation, overtime, underpayment, leave, house allowance and salary arrears) was rejected for want of a cross-appeal. The trial court's judgment was affirmed and the appeal dismissed 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 respondent was employed by the appellant from April 2018 to June 2020.
  2. 2.Whether the appellant unfairly terminated the employment.
  3. 3.Whether the judgment of the trial court should stand.

Key legal issues

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01

Existence of an employment relationship

Holding

The respondent was employed by the appellant as a general employee from April 2018 to June 2020 under an oral contract of service.

Reasoning

The officials who allegedly hired the respondent were not called to rebut her evidence; PW2 and PW3 testified she was introduced as caretaker and performed cleaning duties, collected banking slips and receipts; the appellant never rebutted the Mwalimu Agencies letter demanding surrender of records and notifying her of redundancy.

p. 6
02

Fairness of termination

Holding

The termination was unfair - no valid reason and no fair procedure; what was a redundancy was not conducted per section 40 of the Employment Act.

Reasoning

The employer terminated services to outsource them to Mwalimu Agencies, a redundancy situation, but failed to follow the mandatory section 40 procedure; neither substantive justification nor procedural fairness under sections 41, 43 and 45 was met.

p. 7
03

Interference with the trial court's discretionary award

Holding

The award of Kshs.58,000 was reasonable and not disturbed.

Reasoning

An appellate court does not interfere with a discretionary award unless unsupported by evidence or based on misapprehension; the three months' compensation was reasonable given the two-year service, absence of misconduct, and the easily-secured nature of the job; notice pay and service pay were statutorily justified.

p. 7
04

Request for further reliefs via submissions

Holding

Rejected for want of a cross-appeal.

Reasoning

The respondent sought enhanced awards only in written submissions without filing a cross-appeal; allowing this would prejudice the appellant and offend the principle of finality.

p. 8

Legal principles established

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  • An employment contract need not be in writing; an oral or implied contract proved by conduct suffices.
  • A termination must satisfy both substantive and procedural fairness; non-compliance with section 40 redundancy procedure renders a redundancy an unfair termination under section 45.
  • A party cannot obtain additional relief on appeal through written submissions without filing a cross-appeal.
  • On a first appeal the court re-evaluates the evidence and draws its own conclusions while making allowance for not having seen or heard the witnesses.

Court orders

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  1. 1.The trial court's finding of an employment relationship is upheld
  2. 2.The trial court's finding of unfair termination is upheld
  3. 3.The award of Kshs.58,000 (three months' salary compensation, one month's salary in lieu of notice, and service pay of Kshs.18,000) is affirmed
  4. 4.The respondent's request for further reliefs by way of submissions is rejected
  5. 5.The appeal is dismissed with costs

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Nyeri
Nyeri E.RC Case No. 37 of 2022
Jurisdiction invoked
First appellate jurisdiction of the ELRC over appeals from subordinate courts (appeal by way of retrial per Selle v Associated Motor Boat Co Ltd)

Relief refused

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Enhanced compensation (12 months), overtime, underpayment, rest days, leave, house allowance and salary arrears sought by the respondent

She did not file a cross-appeal; a party cannot appeal by way of written submissions

p. 8

The appellant's prayer to set aside the trial judgment and dismiss the suit

There was unrebutted evidence of an oral contract of service and unfair termination

p. 7

Costs

The appeal was dismissed with costs (costs to the respondent); the trial court's award of costs to the respondent also stands.

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.

I am satisfied that the respondent was employed by the appellant as a general employee in its premises from April 2018 to June 2020.
p. 6Employment relationship
the appellant terminated the services of the respondent without any valid reason and without following a fair procedure
p. 7Unfair termination
I find that the appellant has failed to demonstrate sufficient ground upon which this court should disturb the award of Kshs.58,000 made by the trial court.
p. 7Discretionary award
In view of the finding above, I proceed to afirm the trial court's judgment and dismiss it with costs.
p. 8Disposition/final orders

Issues in the judgment

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minor

The disposition paragraph is internally contradictory in wording - it says the court affirms the trial judgment yet states it dismisses 'it'; the reference is evidently to dismissing the appeal.

minor

The judgment refers to the trial court as 'She' although the trial magistrate is named Hon. Lubia SRM.

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, "Ihururu Housing Investment Co-operative Society Ltd v Wangari (Employment and Labour Relations Appeal E014 of 2024) [2025] KEELRC 1453 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 2nd July 2024 (from Nyeri E.RC Case No. 37 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1453/eng@2025-05-15

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