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ELRCPartially AllowedAppeal No E017 of 2023· [2025] KEELRC 1685 (KLR)

Supa Festive Limited v Wanjala (Appeal E017 of 2023) [2025] KEELRC 1685 (KLR)

Employment and Labour Relations Court
5 June 2025
5,368 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan court cut an ex-employee's award from Kshs3 million to about Kshs123,514, but confirmed the dismissal was unfair because the employer skipped a fair hearing.

What this practically means

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Executive summary

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This is a first appeal from a magistrates' court judgment of 6th November, 2023 which had allowed a former employee's claim in full with costs, awarding approximately Kshs3,005,079/=. The appellant employer challenged the award on grounds that no evidence supported the overtime claim, that pleadings and evidence were at variance, and that the judgment was against the weight of evidence. The ELRC at Bungoma, per David Nderitu, J, framed four issues: the nature and length of employment, the fairness of the termination, the correctness of the trial court's decision, and appropriate orders. The court held that employment commenced on 1st October, 2019 under a one-year fixed-term contract, not 4th September, 2018, because the respondent's delivery notes were not proof of employment and described him as a turnboy, while the appellant's unchallenged letter of appointment was deemed accurate under Section 10 of the Employment Act. The findings of unfair termination were nonetheless upheld on both substantive and procedural grounds: the appellant proved no valid reason and conceded that no disciplinary process was undertaken contrary to Sections 41 and 43. Re-assessing each relief, the court set aside claims for house allowance, 2018 holidays, overtime, unremitted NSSF/NHIF (directing recourse to statutory mechanisms), unpaid 2019 salary, and leave, and reduced compensation to three months' pay. Judgment was substituted at Kshs123,514/=. Costs of the trial court to the respondent remain undisturbed; each party to bear own costs of the appeal.

Key legal issues

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01

Nature and commencement date of employment

Holding

The respondent's employment commenced on 1st October, 2019 under a one-year fixed-term contract, not on 4th September, 2018 as found by the trial court; the trial court's holding on the commencement date was set aside

Reasoning

The respondent relied on two delivery notes from December 2018 which described him as a turnboy, not a salesman. The appellant produced an unchallenged letter of appointment effective 1st October, 2019, which the respondent admitted reading and signing. Under Section 10 of the Employment Act employer records are deemed accurate absent contrary evidence. Delivery notes are not proof of employment.

p. 5
02

Substantive fairness of the dismissal

Holding

The appellant failed to prove a substantive reason for the dismissal; the trial court's finding of unfair termination was upheld

Reasoning

The appellant alleged the respondent absconded duty, but produced no show-cause letter, no proof of efforts to trace the respondent, and undertook no disciplinary process. Under Section 43(1) the employer must prove reasons for termination; none was established, so the trial court's finding on substantive unfairness stands.

p. 7
03

Procedural fairness of the dismissal

Holding

The appellant failed to comply with Section 41 of the Employment Act; the trial court's finding was upheld

Reasoning

Section 41(2) requires an employer to hear and consider an employee's representations before termination or summary dismissal even for gross misconduct under section 44. RW1 conceded no disciplinary proceedings were undertaken, so the dismissal was procedurally flawed regardless of the alleged abscondment.

p. 7
04

Re-assessment of reliefs awarded

Holding

Several awards were set aside or reduced: underpayment Kshs15,066; notice pay Kshs21,418.50; 2019 public holidays Kshs6,495; security deposit Kshs2,000; off days Kshs14,279; compensation reduced to 3 months (Kshs64,255.50); total substituted at Kshs123,514/=

Reasoning

The trial court issued blanket awards without addressing each relief. The court recalculated each head based on the contractual commencement date, the statutory wage of Kshs21,418.50 under the Regulation of Wages (General) Amendment Order, 2018, and section 49 factors including the respondent's short service of about six months.

p. 11
05

Refund of unremitted NSSF and NHIF deductions

Holding

Refused; the respondent must pursue enforcement through the statutory mechanisms of NSSF and NHIF

Reasoning

The court held that NSSF and NHIF are statutory bodies empowered to recover unremitted dues, and refunds should be pursued through the statutory instruments governing those bodies rather than as a direct claim against the employer in the employment suit.

p. 9

Legal principles established

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  • As the first appellate court, the court is obligated to evaluate the evidence and arrive at its own conclusions while bearing in mind it neither heard nor recorded the trial evidence
  • The employer is the custodian of employee records under Section 10 of the Employment Act and its records are deemed accurate absent evidence to the contrary
  • Delivery notes are not proof of employment
  • An employer must accord an employee a fair hearing before dismissal, including where misconduct is alleged
  • The burden of proving unfair termination lies with the employee, discharged by establishing a prima facie case that the termination fell outside section 45 of the Employment Act
  • Compensation for unfair termination is intended to remedy loss, not to provide undue enrichment
  • Issuance of a certificate of service is unconditional under Section 51 of the Employment Act

Court orders

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  1. 1.The appeal is partially allowed.
  2. 2.The claims of salary underpayment, house allowance, unpaid holidays-2018 & 2019 (part) double salary; unremitted NSSF and NHIF deductions; overtime allowance; off days; unpaid salary; and unpaid leave are hereby set aside.
  3. 3.Judgment be and is hereby entered in favour of the respondent in the sum of Kshs123,514/= in substitution of Kshs3,005,079/= (comprising pay in lieu of notice Kshs21,418.50; underpayments Kshs15,066; unpaid public holidays 2019 Kshs6,495; security deposit Kshs2,000; off days Kshs14,279; compensation for unlawful termination Kshs64,255.50).
  4. 4.Certificate of service be issued by the appellant to the respondent and the same be delivered to his counsel on record within 30 days of this judgment.
  5. 5.The award of costs to the respondent in the lower trial court shall remain undisturbed.
  6. 6.Each party shall meet own costs for this appeal.

Authorities

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Legislation

  • Employment ActSections 9, 10, 14 (referenced via NSSF Act), 28, 41, 41(2), 43(1), 44, 45, 47(5), 49, 51
  • National Social Security Fund ActSection 14
  • Regulation of Wages (General) Amendment Order, 2018General

Cases cited (10)

  • Rogoli Ole Manadiegi v General Cargo Services Limited
    (2016) eKLR
  • Kudheiha Workers v Charles Waithaka Goka T/A Apples Bees Pub and Restaurant
    (2013) eKLR
  • Charles Nguma Maina V Riley Services Limited
    (2018) eKLR
  • Simiyu v Nzoia Sugar Company Limited
    (2022) KEELRC 1758 KLR
  • Grain Pro-Kenya Inc Ltd V Andrew Waithaka Kiragu
    (2019) eKLR
  • Evans Gato Orina v Aggreko International Project Limited
    (2019) KLR
  • Francis Aboge Oduk v Hasbah Kenya Limited
    (2020) eKLR
  • Josephine M. Ndungu & others v Plan International Inc
    (2019) eKLR
  • British Leyland UK Limited v Swift
    (1981) I.R.L.R. 91
  • Selle V Associated Motor Boat Co. Ltd
    (1968) E.A 123
On appeal from
Lower trial court (magistrates' court, Bungoma)
Jurisdiction invoked
First appellate jurisdiction over the trial court's judgment delivered on 6th November, 2023 in an employment claim

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, "Supa Festive Limited v Wanjala (Appeal E017 of 2023) [2025] KEELRC 1685 (KLR)", Case Analysis (2025). Appeal No E017 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1685/eng@2025-06-05

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