Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Petitions
The court dismissed the respondent's preliminary objection to the petition, finding that the petition did not violate the doctrine of constitutional avoidance. The respondent argued that the petition was a civil claim under the Employment Act and Work Injuries Benefits Act (WIBA) that could be resolved through statutory forums, but the court held that the petitioner's claim involved constitutional rights under Articles 27, 28, 41, and 47 of the Constitution, specifically the right to fair labour practices and fair administrative action. The court cited the Nairobi ELRC Petition E073 of 2023 (Boniface Orubia Wasika v Cadell Construction Co) where the court determined that enforcing statutory obligations under WIBA could constitute a constitutional issue if the employer's failure to comply violated fundamental rights. The court concluded that the petition was not a mere contractual dispute but involved constitutional rights warranting judicial determination.
constitutional avoidanceemployment actwork injuries benefits actbill of rights5 min read
JudgmentPaul Kibue Gachuhi VS Eagle (1) Concrete & Machineries Limited AND Directorate Of Occupational Safety And Health Services
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Petitions
The court dismissed the respondent's preliminary objection to the petition, ruling that the petition does not constitute a mere civil claim under the Employment Act or Work Injury Benefits Act (WIBA) but involves constitutional violations under Articles 27, 28, 41, and 47 of the Constitution, specifically the right to fair labour practices and fair administrative action. The court found that the employer's failure to comply with WIBA provisions constitutes a violation of constitutional rights, warranting jurisdiction under the High Court despite the doctrine of constitutional avoidance, as established in Boniface Orubia Wasika v Cadell Construction Co (2023). The court held that the petition addresses the employer's conduct in failing to voluntarily submit to WIBA, not compensation for injury, and thus the preliminary objection was without merit.
constitutional avoidanceemployment actwork injury benefits actbill of rights5 min read
JudgmentCounty Government Of Kirinyaga AND Kirinyaga County Secretary VS Hon.peter Ndambiri Njagi
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court granted a stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. The applicant sought stay of the judgment dated 15 October 2024, arguing that the respondent's whereabouts and financial capacity to repay the decretal sum of Kshs.5,700,000 were uncertain, and that granting stay was necessary to prevent substantial loss. The court found the delay in filing the application was not unreasonable and that the applicant met the threshold for substantial loss as the respondent failed to prove his capacity to repay the decretal sum. The applicant was ordered to deposit Kshs.5,000,000 as security for the due performance of the decree within 45 days.
stay of executioncivil procedure rulessubstantial losssecurity for decree5 min read
JudgmentCounty Government Of Kirinyaga AND Kirinyaga County Secretary VS Hon.peter Ndambiri Njagi
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court granted a stay of execution pending appeal for the applicant, who sought to halt enforcement of a judgment due to the respondent's uncertain whereabouts and financial capacity to repay the decretal sum. The court found the applicant met the legal threshold under Order 42 Rule 6 of the Civil Procedure Rules, as the delay in filing the application was not unreasonable and the respondent failed to prove his capacity to repay the decretal sum should the appeal succeed. The applicant was ordered to deposit Kshs.5,000,000 as security for the decree's due performance within 45 days, with the stay lapsing if the condition was not met.
stay of executioncivil procedure rulessubstantial losssecurity for decree6 min read
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The appellant appealed against the Principal Magistrate's judgment dismissing their claim for unfair termination, arguing the trial court erred in holding the claimant failed to prove unfair termination due to lack of service with a show cause letter and disciplinary hearing. The court found the appellant was served with a summons on 30th September 2019, attended a disciplinary hearing but declined to appear, and was terminated lawfully under the Employment Act, 2007, with the termination being fair and just as per the evidence.
employment act 2007unfair terminationdisciplinary hearingshow cause letter14 min read
JudgmentJANE WANJA NDWIGA VS KATHAGERI YOUTH POLYTECHNIC
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The appellant, who was employed as an Accounts Clerk by the respondent until July 2020, claimed unlawful termination after being given compulsory leave without pay during the COVID-19 pandemic. The trial court found unlawful termination and awarded ten months' salary plus one month's salary in lieu of notice, but dismissed claims for service pay/gratuity and underpaid wages due to lack of particulars and evidence. The appellate court allowed the appeal, ruling that the appellant proved entitlement to service pay/gratuity under section 35(5) of the Employment Act based on NSSF contributions and the settlement agreement, and that the claim for underpaid wages was not properly substantiated.
unlawful terminationservice pay/gratuityunderpaid wagescompulsory leave11 min read
JudgmentDel Monte Kenya Limited VS Ben Kimaiyo Kiptoo
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The appellant appealed against the trial court's judgment in a dispute over unlawful and unfair termination of employment. The respondent claimed the dismissal was unlawful and unfair, seeking compensation including unpaid leave for 15 years, one month's salary in lieu of notice, and damages for unfair termination. The trial court found the termination unlawful and unfair, awarded Kshs.410,700 in compensation, Kshs.68,450 in lieu of notice, and Kshs.718,724.90 for unpaid leave. The appellant argued the dismissal was justified under the Employment Act, citing evidence of theft, and that the trial court erred in shifting the burden of proof and awarding excessive compensation. The court upheld the trial court's findings that the dismissal was unlawful and unfair, rejecting the appellant's arguments on the grounds of valid termination procedures and the respondent's entitlement to compensation.
unlawful terminationunfair terminationemployment lawburden of proof16 min read
JudgmentMUNDIA NJERU GETERIA VS Embu County AND HON.MARTIN NYAGA WABORA
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Petitions
The court reviewed an application to set aside a consent order entered on 28 July 2023, which purported to amend the judgment from 2015. The application alleged misrepresentation by respondents' counsel, failure to properly advise the first respondent, and inadvertent mistake in entering the consent. The petitioner opposed by claiming the consent was voluntary, fully informed, and the application was an abuse of process. The court found the applicant did not meet the legal threshold under Rule 33 of the ELRC Procedure Rules 2016 to review the consent order, as there was no evidence of misrepresentation, fraud, or mistake that would justify setting aside the contract. The court dismissed the motion with costs, noting the consent order was entered voluntarily by the county secretary based on information from counsel.
consent ordermisrepresentationfraudmistake10 min read
JudgmentMUNDIA NJERU GETERIA VS Embu County AND HON.MARTIN NYAGA WABORA
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Petitions
The court considered an application to set aside a consent order entered on 28 July 2023, which purported to amend the judgment from 2015. The applicant claimed the consent order was entered due to misrepresentation and non-disclosure by the respondent's counsel, leading to a mistake by the county secretary. The court found the applicant failed to demonstrate sufficient grounds under Rule 33 of the ELRC Procedure Rules 2016 for review, as the consent order was voluntarily entered with full knowledge and the applicant did not prove misrepresentation or fraud. The court dismissed the motion with costs, noting the county secretary's role as a senior officer who voluntarily followed counsel's instructions.
consent ordermisrepresentationfraudmistake10 min read
JudgmentD.B. Osoro & Company Advocates VS Daniel Ngatia Muriithi
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court of appeal considered an appeal from the trial court's judgment in a labour dispute where the appellant (Van KappeL Kenya Limited) challenged the award of notice pay, severance pay, and general damages for unlawful termination of the respondent (Daniel Ngatia Muriithi). The appellant argued the trial court erred by failing to grant them an opportunity to be heard, awarding notice pay exceeding the respondent's monthly salary, granting severance pay without specific pleading, awarding maximum 12 months' salary without justification, and failing to order statutory deductions. The court found the appellant was not denied hearing as their advocates were served with notice and an affidavit of service was on record; the award of notice pay and severance pay was justified under the Employment Act; the 12 months' salary compensation was discretionary and not subject to interference; and statutory deductions were automatic under the Employment Act. The appeal was dismissed with costs.
employment actunlawful terminationseverance paynotice pay16 min read
JudgmentD.B. Osoro & Company Advocates VS Philip Mwaura Ndungu
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court upheld the appellant's appeal on the grounds that the trial court erred by failing to grant the appellant an opportunity to be heard on its defence, awarding notice pay and severance pay without specific pleading, awarding notice pay exceeding the respondent's monthly salary, awarding severance pay not pleaded in the pleadings, and awarding maximum compensation without justification. The court found the appellant was not denied opportunity to be heard as its advocates were served with hearing notice and an affidavit of service was filed, and the award of damages was discretionary under the Employment Act.
employment actconstructive dismissalnotice payseverance pay16 min read
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