Mirk General Agencies Limited v Atieli (Appeal E353 of 2024) [2025] KEELRC 2633 (KLR)
The bottom line
#A Kenyan court confirmed the dismissal was unfair but cut the compensation from 12 months' pay to three, showing maximum awards need strong justification.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court erred by finding that Respondent's termination of employment was unfair and unlawful
- 2.Whether the trial court erred in awarding the Respondent his reliefs as sought in his claim
Key legal issues
#Whether the Respondent's termination was substantively and procedurally unfair
Yes; the reasons for termination (theft) were never proved and the mandatory procedure under section 41 was not followed
The burden under section 47(5) shifted to the employer after the Respondent proved termination occurred. No evidence showed the Respondent received the dismissal letter, no goods were found on him at the mandatory exit inspection, and the CCTV footage did not show him taking anything from the premises. No show cause letter was issued and no disciplinary hearing was held, violating section 41.
Whether the trial court erred in awarding maximum 12 months' compensation
Yes; the award was excessive given one year of service and lack of justification; revised to three months' salary
An award of compensation is discretionary but must be exercised judiciously under section 49(4) of the Employment Act. The trial court failed to properly justify the maximum award. Considering the one-year duration of employment and that the employment could be terminated for lawful reasons, 12 months' compensation was excessive.
Whether the award of overtime pay was justified
No; the claim was disallowed
The trial court awarded overtime without any basis or explanation and the Respondent failed to substantiate the claim; the award was set aside on appeal.
From what date interest on the decretal sum should accrue
From the date of judgment, not the date of filing suit
A claim for unfair termination is akin to general damages, determinable only after trial; therefore the interest award runs from judgment and the appellant's ground on interest succeeded.
Legal principles established
#- An award of the maximum 12 months' pay for unfair termination must be based on sound judicial principles, with the trial court justifying why the claimant is entitled to the maximum award
- For termination to pass the fairness test, there must be both substantive and procedural fairness
- Section 41 of the Employment Act is mandatory; failure to issue a show cause letter and accord a hearing renders the termination unfair
- Interest on an award for unfair termination runs from the date of judgment, not the date of filing suit
Court orders
#- 1.Appeal allowed in part: award of 12 months' compensation for unfair termination revised to three months' salary
- 2.Claim for overtime disallowed
- 3.Interest on the decretal sum to run from the date of judgment and not the date of filing of the suit
- 4.Findings of the trial court on other heads of claim (notice pay, house allowance, leave pay, service pay) upheld
- 5.Each party to bear their costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (ELRC)
- Jurisdiction invoked
- First appellate jurisdiction over the trial magistrate's judgment in an employment claim
Relief refused
#Interest on the decretal sum from the date of filing suit
Claim for unfair termination is akin to a claim for general damages determinable only after trial; interest awardable from date of judgment
Overtime pay of Kshs 90,000
Claim not established and proved by the Respondent
Restoration of the maximum 12 months' compensation
Trial court failed to properly justify the maximum award given the Respondent's one year of service; award reduced to three months' salary
Costs
Since the Appeal partially succeeds each party shall bear their costs of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Since the Appeal partially succeeds each party shall bear their costs of the appeal.
The Court therefore revises the award to three months’ salary to be a fair compensation in the circumstances.
Save for the claim for overtime which is hereby disallowed, and interest on the decretal sum, the Court agrees with the findings of the trial court on other heads of claim and finds no reason to disturb them.
the court agrees with the trial court’s decision that the Respondent’s termination was both substantively and procedurally unfair hence unjustified.
Section 41 of the Employment Act is couched in mandatory terms. Where an employer fails to follow these mandatory provisions, whatever outcome of the process is bound to be unfair
Issues in the judgment
#Judgment numbering skips from paragraph 40 to paragraph 45; paragraphs 41-44 are absent
The decretal total is inconsistently stated as Kshs. 478,276.44 in submissions and Kshs. 487,276.44 in the court's recital
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mirk General Agencies Limited v Atieli (Appeal E353 of 2024) [2025] KEELRC 2633 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 10th December 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2633/eng@2025-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.