Supa Festive Limited v Wanjala (Appeal E017 of 2023) [2025] KEELRC 1685 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Nature and commencement date of employment
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
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.
Substantive fairness of the dismissal
The appellant failed to prove a substantive reason for the dismissal; the trial court's finding of unfair termination was upheld
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.
Procedural fairness of the dismissal
The appellant failed to comply with Section 41 of the Employment Act; the trial court's finding was upheld
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.
Re-assessment of reliefs awarded
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/=
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.
Refund of unremitted NSSF and NHIF deductions
Refused; the respondent must pursue enforcement through the statutory mechanisms of NSSF and NHIF
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.
Legal principles established
#- 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
#- 1.The appeal is partially allowed.
- 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.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.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.The award of costs to the respondent in the lower trial court shall remain undisturbed.
- 6.Each party shall meet own costs for this appeal.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.