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ELRCPartially AllowedNot stated in judgment (appeal from MCELRC No. E1040 of 2021)· [2025] KEELRC 1592 (KLR)

Singh v Ambani (Appeal E017 of 2023) [2025] KEELRC 1592 (KLR)

Employment and Labour Relations Court
23 May 2025
2,815 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld an unfair termination award but reduced service pay, confirming employers must actually recall cleared employees back to work.

What this practically means

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Executive summary

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The Appellant, an employer, appealed against the judgment of the Honourable B.M. Cheloti (SRM) delivered on 17 February 2023 in MCELRC No. E1040 of 2021, which awarded the Respondent, a general worker and watchman employed from 2004 to 2020, Kshs. 392,000/- comprising 12 months' salary as compensation for unfair termination and service pay for 16 years. The Respondent had been arrested after a robbery incident at the Appellant's residence, cleared by police without charge, and upon release was never recalled to work; a certificate of final payment of Kshs. 102,243 was later executed before a labour officer. The appeal was canvassed by written submissions. The court applied Selle v Associated Motor Boat Co and Mbogo v Shah on the first appellate court's duty to re-evaluate evidence and restraint in disturbing discretionary findings. It rejected the Respondent's cross-appeal on notice pay raised only in submissions, holding that parties are bound by pleadings and submissions are not pleadings. The court upheld the finding of unfair termination, since the Appellant admitted he never expressly asked the claimant to return to work, and upheld the 12 months' salary award of Kshs. 168,000 under section 49 of the Employment Act, following Ken Freight (E.A) Limited v Benson K. Nguti. However, it reduced the service pay award: applying the statutory 15 days' pay per year worked and discounting the Kshs. 54,810 already paid, it recalculated the balance as Kshs. 57,190. The judgment of the trial court was set aside and substituted with judgment for the claimant of Kshs. 225,190 with interest at court rate, a certificate of service, and costs of the suit. Costs of the appeal were awarded to the Appellant, and a stay of 30 days was granted.

Key legal issues

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01

Whether the termination was unfair

Holding

The trial court's finding of unfair termination was upheld; the appellant never expressly recalled the claimant to work after his release from police custody.

Reasoning

The claimant was arrested after a robbery incident, cleared by police without charge, and upon release was not recalled to work. The appellant admitted in cross-examination that he did not expressly ask the claimant to return to work. The appellate court found no basis to disturb the trial magistrate's factual finding of unfair termination, applying the Selle v Associated Motor Boat Co principles for reappraisal of evidence.

p. 5
02

Whether the reliefs granted were excessive

Holding

The 12 months' salary award of Kshs. 168,000 was upheld, but the service pay award was reduced to Kshs. 57,190 after discounting the Kshs. 54,810 already paid and applying the 15-days-per-year rule.

Reasoning

Relying on Ken Freight (E.A) Limited v Benson K. Nguti, the court confirmed section 49 Employment Act governs remedies for unfair termination and declined to interfere with the 12-month award given 16 years of service. On service pay, section 35 provides 15 days' pay per year worked; the amount of Kshs. 54,810 already paid under the undisputed tabulation had to be discounted from the recomputed award of Kshs. 112,000.

p. 6
03

Whether the certificate of final payment barred the claim

Holding

The claimant remained entitled to a day in court on the reasons for termination notwithstanding the certificate; the agreement did not bar the unfair termination finding.

Reasoning

The claimant alleged the certificate of final payment was signed under coercion before the labour officer. The court held the reasons for termination were not considered by the labour officer and the claimant was entitled to have that issue determined in court despite the settlement agreement.

p. 5

Legal principles established

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  • A first appellate court must reconsider and evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses.
  • An appellate court will not interfere with the exercise of discretion by an inferior court unless satisfied the decision is clearly wrong or based on error.
  • Parties are bound by pleadings; a cross-appeal cannot be raised through submissions alone.
  • Once a court finds termination wrongful or unfair, remedies are governed by section 49 of the Employment Act.
  • Service pay is payable at 15 days' salary for every year worked and must be discounted by amounts already paid as service pay.

Court orders

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  1. 1.Judgment and orders of the Honourable B.M. Cheloti (SRM) delivered on 17 February 2023 set aside and substituted with judgment for the claimant against the respondent
  2. 2.A holding that the termination was unlawful
  3. 3.12 months' salary for unfair termination of Kshs. 168,000
  4. 4.Balance of service pay of Kshs. 57,190
  5. 5.Total award of Kshs. 225,190 with interest at court rate from judgment date until payment in full
  6. 6.Certificate of service
  7. 7.Costs of the suit
  8. 8.Costs of the appeal awarded to the appellant
  9. 9.Stay of 30 days granted

Authorities

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Legislation

  • Employment ActSection 49
  • Employment ActSection 35(5) and (6)

Cases cited (3)

  • Selle v Associated Motor Boat Co
    [1968] EA 123
  • Mbogo V Shah
    [1968] EA 93
  • Ken freight (E.A) Limited v Benson K. Nguti
    SC Pet. No. 37 of 2018 [2019] eKLR
On appeal from
Chief Magistrates Court (Nairobi, ELRC)
MCELRC No. E1040 of 2021
Jurisdiction invoked
First appellate jurisdiction over the subordinate court (employment appeal); Employment Act cited as governing law

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, "Singh v Ambani (Appeal E017 of 2023) [2025] KEELRC 1592 (KLR)", Case Analysis (2025). Not stated in judgment (appeal from MCELRC No. E1040 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1592/eng@2025-05-23

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