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ELRCPartially AllowedAppeal number not stated on the face of the judgment (arising from Milimani MCERLC No. E1217 of 2021)· [2025] KEELRC 1720 (KLR)

Ongori v G4S Kenya Limited (Employment and Labour Relations Appeal E284 of 2024) [2025] KEELRC 1720 (KLR)

Employment and Labour Relations Court
12 June 2025
3,685 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that once unfair termination is proven, judges must award statutory compensation under the Employment Act—not just declare the dismissal unlawful.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi, per J.W. Keli, J, allowed the appellant's appeal against the judgment of the Honourable Stephen K. Onjoro (PM) in Milimani MCERLC No. E1217 of 2021. The trial court had declared the appellant's termination unlawful and unfair but awarded only costs of the suit, declining general damages on the basis of the Court of Appeal's decision in Kenya Broadcasting Corporation v Geoffrey Wakio. On appeal, the court held that once a finding of unfair termination is made, the court is obliged to consider the remedies under sections 49(1)(c) and 50 of the Employment Act, including compensation. Although only 'general damages' had been pleaded, the court applied the principle in Odd Jobs v Mubia and the Supreme Court's decision in Evans v Police Commissioner that an unpleaded issue may be determined where the parties canvassed it, supported by the wide powers under section 12(3) of the ELRC Act and the injunction in section 20(1) to act without undue regard to technicalities. Following Kenfreight (E.A) Limited v Benson K. Nguti (Supreme Court), the court awarded the maximum compensation of 12 months' salary (Kshs. 316,161.36) citing the claimant's long service (May 2008 to August 2020), non-contribution to the termination and remote prospects of similar employment, plus one month's notice pay (Kshs. 26,346.78) under section 35. The claim for July 2020 salary failed, the court deferring to the trial court's finding that the July pay slip evidenced payment. The trial judgment was set aside and judgment entered for the claimant for a total of Kshs. 342,508.14 with interest from the date of the lower court's judgment, plus costs of the suit and of the appeal, with a 30-day stay.

Key legal issues

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01

Whether the trial court erred in failing to award compensation for unfair termination after finding the termination unfair

Holding

The trial court erred; on a finding of unfair termination the court is obliged to consider compensation under sections 49(1)(c) and 50 of the Employment Act, and the maximum award was merited on the facts

Reasoning

Relying on the Court of Appeal in Kenya Broadcasting Corporation v Geoffrey Wakio and the Supreme Court in Kenfreight (E.A) Limited v Benson K. Nguti, the court held that section 49 grants discretionary remedies once unfair termination is established. Although the appellant pleaded only 'general damages', the issue of unfair termination was canvassed, and under the Odd Jobs v Mubia principle and the court's wide powers under section 12(3) of the ELRC Act, compensation could be awarded. The claimant's 12-year service, lack of contribution to the termination and remote chances of similar employment justified the maximum 12 months' compensation of Kshs. 316,161.36.

p. 5
02

Whether the appellant was entitled to notice pay of one month's salary

Holding

Notice pay of one month's salary (Kshs. 26,346.78) was awarded under section 35 of the Employment Act

Reasoning

The court found the appellant's termination without lawful reason and procedurally flawed, and awarded one month's salary in lieu of notice under section 35 of the Employment Act, alongside the compensation award under section 49(1)(c).

p. 8
03

Whether the trial court's finding on the July 2020 salary should be disturbed

Holding

No; the finding that the July pay slip evidenced payment was not interfered with

Reasoning

Applying Mbogo v Shah, the appellate court declined to interfere with the trial court's factual finding that the July pay slip was produced as evidence of payment of the July 2020 salary, finding no basis to disturb it.

p. 8

Legal principles established

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  • Once a court finds unfair termination, it is obliged to consider remedies under section 49 of the Employment Act, including compensation, even where only general damages were pleaded, if the issue of unfair termination was canvassed
  • A court may determine an unpleaded issue where the parties canvassed it and left it to the court to determine
  • General damages are not awardable for wrongful termination; the remedy is compensation under section 49 of the Employment Act
  • A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, though making allowance for not having seen or heard the witnesses

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment of the Honourable Stephen K. Onjoro (PM) delivered 3rd May 2024 in Milimani MCERLC No. E1217 of 2021 is set aside and substituted with judgment for the claimant: (a) a declaration that the termination was unlawful and unfair; (b) notice pay of Kshs. 26,346.78; (c) compensation for unfair termination of Kshs. 316,161.36; (d) total sum of Kshs. 342,508.14 with interest at court rate from the date of judgment of the lower court; (e) costs of the suit
  3. 3.Costs of the appeal awarded to the appellant
  4. 4.Stay of 30 days granted

Authorities

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Legislation

  • Employment Act, 2007Sections 49(1)(c), 49(4), 50, 35
  • Employment and Labour Relations Court Act, Cap 8ESections 12(3), 20(1)
  • Constitution of KenyaNot specified (referenced generally in grounds of appeal)

Cases cited (11)

  • Selle v Associated Motor Boat Co. Ltd
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA
  • Kenya Broadcasting Corporation v Geofirey Wakio
    [2019] eKLR
  • Ol Pejeta Ranching Limited vs. David Wanjau Muhoro
    [2017] eKLR
  • Kenya Airways Ltd vs. Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • Alfred Githinji vs. Mumias Sugar Company Ltd
    Civil Appeal No 194 of 1991
  • Central Bank of Kenya vs. Julius Nkonge
    [2002] eKLR
  • CMC Aviation Limited vs. Mohammed Noor
    [2015] eKLR
  • Kenfreight (E.A) Limited v Benson K. Nguti
    SC Pet. No. 37 of 2018 [2019] eKLR
  • Evans v police commissioner
    Petition No. 15(E022) OF 2021
  • Odd Jobs v. Mubia
    [1970] EA 476
On appeal from
Chief Magistrate's Court, Milimani (Nairobi)
Milimani MCERLC No. E1217 of 2021
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's court; remedies under Sections 49(1)(c) and 50 of the Employment Act 2007 and Sections 12(3) and 20(1) of the Employment and Labour Relations Court Act, Cap 8E

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Ongori v G4S Kenya Limited (Employment and Labour Relations Appeal E284 of 2024) [2025] KEELRC 1720 (KLR)", Case Analysis (2025). Appeal number not stated on the face of the judgment (arising from Milimani MCERLC No. E1217 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1720/eng@2025-06-12

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