REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO. E203 OF 2024
(Before Hon. Justice Dr. Jacob Gakeri)
AMOS JUMA SIKUKU.……………………................................ PETITIONER
VERSUS
KENYA NATIONAL TRADING CORPORATION (KNTC)…………………………………………………..….…...... RESPONDENT
RULING
It is common ground that by a judgment delivered on 30th June 2025, the court awarded the Petitioner Kshs.3,000,000 as damages for violation of his Constitutional rights and “all and any salary and benefits withheld as a result of the unlawful and unfair termination of employment”, costs of the suit plus interest at court rates from the date of judgment.
Evidence on record reveals that the Party and Party bill of costs dated 2nd July 2025 was taxed at Kshs.275,275.00 on 28th January, 2026.
The contents of paragraph 81(4) of the Judgment dated 30th June, 2025 reveal that the actual sum payable to the Petitioner as withheld salary and benefits was not computed.
To remedy the situation, the Petitioner’s Advocate sent a letter to the Deputy Registrar of the Court dated 5th February 2026 computing the Petitioners withheld salary and benefits as follows:
(a) Salary for 16 months ………………………………..……Kshs.3522,432.00
(b) Leave earned …………………………………………….…Kshs.152,143.00
(c) Leave allowance …………………………………………...Kshs.146,152.00
(d) Gratuity ………………………………………………….Kshs.1585,749.00
Total ………………………………………………….…Kshs.5,407,476.20
The Petitioners Counsel requited the Deputy Registrar to issue a decree reflecting the above figure with Kshs.3,000,000 awarded as damages.
The Deputy Registrar slated a mention before this court for further directions and counsel reported that parties had filed submissions for and against the letter dated 5th February, 2026. The letter dated 5th February 2026 was not served upon the Respondent for information or response.
Petitioner’s Submissions
According to counsel for the Petitioner the sum of Kshs.3000,000 awarded by the court was distinct from the award of withheld salary and benefit as a consequence of the unlawful termination of employment citing the decision in Oyuga & 4 others Kenya Airways Co. Ltd (2023) KEELR 2013 (KLR) for the proposition that damages for Constitutional violation and reliefs under section 49 of the Employment Act were distinct and Ol Pejeta Ranching Co. Ltd v David Wanjau Muhoro (2017) eKLR to reinforce the submission and the Respondent could not re-write or review the judgment to alter the awards and because termination of employment was declared unconstitutional the Petitioner ought to have remained in employment until the date of Judgement and to be paid, hence the sum of Kshs.5,407,476.20 which was in line with the judgment of the court at paragraph 81(4).
Respondent’s Submissions
In opposition to the Petitioner’s request, counsel for the Respondent submitted that the Petitioner was only entitled to the sum award of Kshs.3000,000.00 and nothing else, for various reasons including the amount claimed was untenable and unsupported by the judgment, arrears if any ought to be restricted to the period between date of unlawful termination of employment and date of judgment, the Petitioner did not render any service after termination of employment and had already been compensated in damages for the unlawful termination of employment.
On salary arrears, counsel submitted that the sum of Kshs.3000,000.00 awarded to the Petitioner constituted compensation for the wrongful dismissal from employment and the Petitioner was not reinstated, and no sorry arrears were awarded.
Reliance was placed on Sedena Agencies Ltd v Presbyterian Foundation (2017) KEHC 7724 (KLR), for the proposition that a litigant should not be unjustly enriched and in the instant case the Petitioner’s loss had been assessed at Kshs.3000,000.00.
Counsel submitted that damages were compensatory citing the decision in Njai Mutitu v University of Nairobi (2020) eKLR on double benefit, to urge that the sum claimed by the Petitioner was duplicative for the same grievance and was unsustainable. Counsel submitted that the claim for arrears from 6th March, 2024 to 30th June 2025 was a based on a conceptual fallacy, urging that in employment, salary was not an unconditional right and award of the arrears as claimed would amount to damages for unrendered services and the Petitioner did not mitigate loss.
Counsel, further submitted that the additional claims violated the provisions of the Employment Act which prescribed the maximum compensation.
Reliance was placed on Ol Pejeta Ranching Co. Ltd v. David Wanjau Muhoro (Supra) on the 12month’s salary compensation and Gas Kenya Ltd v Odhiambo (2022) KEELRC 3930(KLR), on the need to ensure that an employee’s compensation for loss of employment was proportional to the actual loss suffered. Counsel urged that the Petitioner was not entitled to additional payment the sum of Kshs.5,406,476.20 had neither factual nor legal basis and the amount due was Kshs.4,108,872.00 comprising, damages awarded by the court Kshs.3000,000.00, salary for March (6 days) Kshs.44,030,40, gratuity Kshs.789,521.64 and taxed bill Kshs.275,275.00.
As adverted to elsewhere in this Ruling, the Petitioner’s counsel’s letter dated 5th February, 2026 was precipitated by the judgment of Wasiliwa J in ELRC PET No. E203 of 2024 and more specifically paragraphs 84(1) and (4) of the judgment.
A Panoramic view of the submissions on record reveals that the parties’ interpretations of paragraph 81(4) of the judgment are incongruous.
Regrettably, neither of the parties had previously sought clarification of the judgment by way of review or endeavoured to draft the decree and submitted the same to the other for approval as by law required or sought the Deputy Registrar’s directions on how to proceed, if unsure.
The provisions of Order 21 Rule 8 of the Civil Procedure Rules are clear on the preparation and dating of decrees and attendant processes in case of a disagreement.
Similarly, as mentioned elsewhere in this Ruling, the Petitioner’s letter was not shared with the Respondent when it was sent to the Deputy Registrar.
Finally, since the Petitioner’s letter has not impugned any part of the judgment and the sole question is the decree to be extracted from the judgment, the court directs as follows:
(a) The Petitioner’s Counsel shall prepare a draft the Decree and forward the same to the Respondent’s Counsel for approval with or without amendment within 7 days.
(b) The Respondent’s Counsel shall submit a response within 7 days.
(c) In the case of a disagreement, the Deputy Registrar shall be notified within 7 days.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 21st DAY OF APRIL, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO. E203 OF 2024
(Before Hon. Justice Dr. Jacob Gakeri)
AMOS JUMA SIKUKU.……………………................................ PETITIONER
VERSUS
KENYA NATIONAL TRADING CORPORATION (KNTC)…………………………………………………..….…...... RESPONDENT
RULING
It is common ground that by a judgment delivered on 30th June 2025, the court awarded the Petitioner Kshs.3,000,000 as damages for violation of his Constitutional rights and “all and any salary and benefits withheld as a result of the unlawful and unfair termination of employment”, costs of the suit plus interest at court rates from the date of judgment.
Evidence on record reveals that the Party and Party bill of costs dated 2nd July 2025 was taxed at Kshs.275,275.00 on 28th January, 2026.
The contents of paragraph 81(4) of the Judgment dated 30th June, 2025 reveal that the actual sum payable to the Petitioner as withheld salary and benefits was not computed.
To remedy the situation, the Petitioner’s Advocate sent a letter to the Deputy Registrar of the Court dated 5th February 2026 computing the Petitioners withheld salary and benefits as follows:
(a) Salary for 16 months ………………………………..……Kshs.3522,432.00
(b) Leave earned …………………………………………….…Kshs.152,143.00
(c) Leave allowance …………………………………………...Kshs.146,152.00
(d) Gratuity ………………………………………………….Kshs.1585,749.00
Total ………………………………………………….…Kshs.5,407,476.20
The Petitioners Counsel requited the Deputy Registrar to issue a decree reflecting the above figure with Kshs.3,000,000 awarded as damages.
The Deputy Registrar slated a mention before this court for further directions and counsel reported that parties had filed submissions for and against the letter dated 5th February, 2026. The letter dated 5th February 2026 was not served upon the Respondent for information or response.
Petitioner’s Submissions
According to counsel for the Petitioner the sum of Kshs.3000,000 awarded by the court was distinct from the award of withheld salary and benefit as a consequence of the unlawful termination of employment citing the decision in Oyuga & 4 others Kenya Airways Co. Ltd (2023) KEELR 2013 (KLR) for the proposition that damages for Constitutional violation and reliefs under section 49 of the Employment Act were distinct and Ol Pejeta Ranching Co. Ltd v David Wanjau Muhoro (2017) eKLR to reinforce the submission and the Respondent could not re-write or review the judgment to alter the awards and because termination of employment was declared unconstitutional the Petitioner ought to have remained in employment until the date of Judgement and to be paid, hence the sum of Kshs.5,407,476.20 which was in line with the judgment of the court at paragraph 81(4).
Respondent’s Submissions
In opposition to the Petitioner’s request, counsel for the Respondent submitted that the Petitioner was only entitled to the sum award of Kshs.3000,000.00 and nothing else, for various reasons including the amount claimed was untenable and unsupported by the judgment, arrears if any ought to be restricted to the period between date of unlawful termination of employment and date of judgment, the Petitioner did not render any service after termination of employment and had already been compensated in damages for the unlawful termination of employment.
On salary arrears, counsel submitted that the sum of Kshs.3000,000.00 awarded to the Petitioner constituted compensation for the wrongful dismissal from employment and the Petitioner was not reinstated, and no sorry arrears were awarded.
Reliance was placed on Sedena Agencies Ltd v Presbyterian Foundation (2017) KEHC 7724 (KLR), for the proposition that a litigant should not be unjustly enriched and in the instant case the Petitioner’s loss had been assessed at Kshs.3000,000.00.
Counsel submitted that damages were compensatory citing the decision in Njai Mutitu v University of Nairobi (2020) eKLR on double benefit, to urge that the sum claimed by the Petitioner was duplicative for the same grievance and was unsustainable. Counsel submitted that the claim for arrears from 6th March, 2024 to 30th June 2025 was a based on a conceptual fallacy, urging that in employment, salary was not an unconditional right and award of the arrears as claimed would amount to damages for unrendered services and the Petitioner did not mitigate loss.
Counsel, further submitted that the additional claims violated the provisions of the Employment Act which prescribed the maximum compensation.
Reliance was placed on Ol Pejeta Ranching Co. Ltd v. David Wanjau Muhoro (Supra) on the 12month’s salary compensation and Gas Kenya Ltd v Odhiambo (2022) KEELRC 3930(KLR), on the need to ensure that an employee’s compensation for loss of employment was proportional to the actual loss suffered. Counsel urged that the Petitioner was not entitled to additional payment the sum of Kshs.5,406,476.20 had neither factual nor legal basis and the amount due was Kshs.4,108,872.00 comprising, damages awarded by the court Kshs.3000,000.00, salary for March (6 days) Kshs.44,030,40, gratuity Kshs.789,521.64 and taxed bill Kshs.275,275.00.
As adverted to elsewhere in this Ruling, the Petitioner’s counsel’s letter dated 5th February, 2026 was precipitated by the judgment of Wasiliwa J in ELRC PET No. E203 of 2024 and more specifically paragraphs 84(1) and (4) of the judgment.
A Panoramic view of the submissions on record reveals that the parties’ interpretations of paragraph 81(4) of the judgment are incongruous.
Regrettably, neither of the parties had previously sought clarification of the judgment by way of review or endeavoured to draft the decree and submitted the same to the other for approval as by law required or sought the Deputy Registrar’s directions on how to proceed, if unsure.
The provisions of Order 21 Rule 8 of the Civil Procedure Rules are clear on the preparation and dating of decrees and attendant processes in case of a disagreement.
Similarly, as mentioned elsewhere in this Ruling, the Petitioner’s letter was not shared with the Respondent when it was sent to the Deputy Registrar.
Finally, since the Petitioner’s letter has not impugned any part of the judgment and the sole question is the decree to be extracted from the judgment, the court directs as follows:
(a) The Petitioner’s Counsel shall prepare a draft the Decree and forward the same to the Respondent’s Counsel for approval with or without amendment within 7 days.
(b) The Respondent’s Counsel shall submit a response within 7 days.
(c) In the case of a disagreement, the Deputy Registrar shall be notified within 7 days.
Parties shall bear their own costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 21st DAY OF APRIL, 2026.
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE