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ELRCPartially AllowedMemorandum of Appeal dated 27th April 2023 (Nakuru ELRC)

Nuclear Investment Limited v Kinyanjui (Appeal E008 of 2023) [2025] KEELRC 1998 (KLR)

Employment and Labour Relations Court
4 July 2025
2,994 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed the employee's dismissal was unfair but cut his underpayment award to three years, because employment claims expire after three years.

What this practically means

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Executive summary

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The Appellant employer appealed against a judgment of Principal Magistrate Y.I Khatambi delivered on 13th April 2023, which found that the Respondent, a former employee, had been unfairly terminated and awarded him underpayment of Kshs.543,462, notice pay of Kshs.10,377.75, 12 months' compensation of Kshs.124,526 and leave pay of Kshs.44,218.35. The Appellant raised eleven grounds contending the Respondent failed to prove his case, that dismissal was justified under section 43(2) of the Employment Act, and that the awards lacked evidentiary basis. The Respondent countered that the appeal was defective for want of a certified decree and that the termination was substantively and procedurally flawed. The court framed a single issue: whether the appeal was merited. Applying section 47(5) of the Employment Act and the shared-burden doctrine from Pius Machafu Isindu and Bamburi Cement, the court found the Appellant issued contradictory letters - one citing poor performance and office closure, another citing unspecified 'ignorance and misconduct' - without any disciplinary hearing, contrary to sections 43(1), 41 and 45. The finding of unfair termination was therefore upheld and the appeal dismissed. However, on quantum, the court applied section 89 of the Employment Act and Mary Kitsao Ngoma v Krystalline Limited, holding the underpayment claim partially time-barred: the award was reduced from 96 months to 36 months, totalling Kshs.85,572. Leave pay and 12 months' compensation were upheld. Interest was awarded at 14% per annum from the date of judgment, and the Respondent received costs of both the lower court and the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal is merited

Key legal issues

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01

Whether the Respondent's termination was substantively and procedurally fair

Holding

Termination was unlawful; the Appellant failed to give valid reasons and did not afford a hearing

Reasoning

The Appellant issued contradictory letters - one dated 24th May 2019 citing poor performance and closure of the Nakuru office, and a dismissal letter dated 6th June 2019 citing 'ignorance and misconduct' without details. No disciplinary hearing was held, contrary to section 41. The court found the Respondent did not decline the transfer or abscond, and that the requirements of sections 43(1), 41 and 45 were not met.

p. 5
02

Whether the underpayment award of 96 months was time-barred

Holding

Partially - limited to 36 months under section 89 of the Employment Act

Reasoning

Relying on Mary Kitsao Ngoma & 36 Others v Krystalline Limited, the court held that underpayment claims are limited to the 3-year period under section 89, and are not a continuous injury once employment ends. The magistrate's award for 96 months was therefore reduced to 36 months at Kshs.2,477.75 per month, totalling Kshs.85,572.

p. 6
03

Whether the leave pay and compensation awards were warranted

Holding

Yes - leave pay and 12 months' compensation upheld given the length of service

Reasoning

The court found the leave pay was warranted despite the Appellant's reliance on section 28(4) of the Employment Act, and that 12 months' compensation was deserved considering the period the Claimant had worked for the Appellant. The remaining reliefs were therefore upheld alongside the reduced underpayment figure.

p. 6

Legal principles established

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  • An employee bears the initial burden under section 47(5) of proving unfair termination; once established, the employer must justify valid reasons and fair procedure under sections 43 and 41
  • Termination must satisfy both substantive justification and procedural fairness
  • Employment claims are subject to the 3-year limitation period under section 89 of the Employment Act, which is not a continuous injury after employment ends

Court orders

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  1. 1.Appeal against the finding of unfair termination dismissed
  2. 2.Award of Kshs.543,462/= for underpayment replaced with Kshs.85,572/= (36 months @ Kshs.2,477.75)
  3. 3.Other reliefs (leave pay, 12 months' compensation, notice pay) upheld
  4. 4.Interest at 14% per annum from date of judgment till full payment
  5. 5.Respondent awarded costs of both the lower court and this appeal

The bench

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

Wrote the judgment

On appeal from
Principal Magistrate's Court
not stated
Jurisdiction invoked
First appellate jurisdiction over appeal from the Magistrate's Court (Employment and Labour Relations Court Act); appeal against judgment delivered on 13th April 2023

Relief refused

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Appeal against finding of unfair termination and against leave pay and compensation awards

Respondent failed to comply with sections 43(1), 41 and 45 of the Employment Act; leave pay and 12 months' compensation warranted

p. 6

Costs

Respondent is awarded costs of both cases of the lower court and of this appeal.

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.

The court agrees with the trial court that the Respondent was unlawfully terminated. The court therefore holds that the appeal lacks merit and is dismissed.
p. 6Dismissal of appeal on unfair termination
The award of Kshs.543,462/= for under payment is replaced with Kshs.85,572 but other reliefs are upheld.
p. 6Variation of quantum - final orders
The interest will accrue at 14% per annum from date of Judgment till full payment.
p. 6Interest - final orders
Respondent is awarded costs of both cases of the lower court and of this appeal.
p. 6Costs - final orders
For termination to pass the fairness test it ought to be shown that there was not only substantive justification for termination but also procedural fairness.
p. 6Substantive and procedural fairness

Issues in the judgment

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minor

Typographical errors rendering 'fi' as 'fi'/'i' (e.g. 'afiirmed', 'fiawed', 'ofiice') throughout the text

minor

Typographical errors in party references - 'The Appellant was not given an opportunity to defend himself' in a passage that appears to refer to the Claimant/Respondent

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, "Nuclear Investment Limited v Kinyanjui (Appeal E008 of 2023) [2025] KEELRC 1998 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 27th April 2023 (Nakuru ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1998/eng@2025-07-04

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