Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court reviewed an appeal against a trial court's award of Kshs.5,700,000 housing allowance to a Deputy Governor who claimed entitlement under SRC circulars. The Appellant argued the Respondent's salary (Kshs.621,250) included housing allowance per Gazette Notice 6518, but the court held SRC circulars on housing benefits were legally binding, requiring the Appellant to provide housing or rent payment. The court found the Appellant failed to provide housing, so the Respondent was entitled to Kshs.90,000 monthly rent for 60 months, totaling Kshs.5,700,000.
salaries and remuneration commissionhousing allowancegazette noticedeputy governor11 min read
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court set aside the trial court's finding that the respondent was unfairly terminated, ruling that the respondent failed to prove he was dismissed by the appellant via phone call on 28th August 2023. The court found that the respondent did not discharge the burden of proof under section 107 of the Evidence Act to demonstrate termination by the appellant, and instead, he stopped attending work without prior notice. The court substituted the finding that the respondent voluntarily left his job, thereby setting aside the awards of 12 months' salary compensation and one month's salary in lieu of notice.
unfair terminationemployment lawevidence actburden of proof12 min read
JudgmentAegis Construction Limited VS Richard Maina Kihenja
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The appellant appealed against the lower court's decision regarding the unlawful termination of the respondent's employment. The appellant challenged the trial court's findings on multiple grounds, including the misdirection on the claimant's termination, the failure to apply Section 30 of the Employment Act, 2007, and the erroneous conclusion that the respondent was not required to present a certificate of incapacity. The court found that the respondent's employment was terminated by the appellant without proper procedure, as the appellant did not serve a show cause notice or conduct a disciplinary hearing, and the respondent was not given a fair opportunity to defend himself. The court upheld the trial court's decision that the termination was unfair and unlawful, emphasizing the need for fair procedures under the Employment Act.
employment act, 2007unfair terminationcertificate of incapacitytermination by operation of law14 min read
JudgmentRiva Petroleum Dealers Limted VS Anthony Wanjohi Ndumia
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court quashed the lower court's ruling on the appeal, finding that the appellant erred by failing to properly challenge the leave to file suit out of time under section 90 of the Employment Act. The trial court incorrectly held that it could not sit on appeal over a fellow magistrate's leave order, but the court determined that the appellant could raise a preliminary objection to the time-barred suit during trial proceedings, as leave to file suit out of time is not a final order and can be challenged during the trial. The court ruled that the trial court erred in allowing the suit to proceed without addressing the time-barred issue during trial, and the appeal was allowed with the statement of claim struck out.
employment actlimitation periodpreliminary objectionleave to file suit8 min read
JudgmentAmos Mwangi Njoroge VS China Far East Construction Company Limited
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court dismissed the appellants' appeals against the trial court's finding that they failed to prove an employment relationship with the respondent. The appellants alleged unlawful termination of employment by the respondent between July 2018 and 2020, but they did not produce written contracts or witnesses to support their claims. The trial court found that the appellants did not prove their employment relationship under section 107 of the Evidence Act, as they only submitted demand letters and no evidence of salary payments. The court upheld the dismissal with costs, noting the appellants failed to meet the burden of proof for employment and termination claims.
employment relationshipunlawful terminationevidence actbalance of probabilities7 min read
JudgmentLeonard Magira Muchiri VS China Far East Construction Company Limited
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court dismissed the appellants' appeals, finding that they failed to prove an employment relationship with the respondent as alleged. The appellants did not provide sufficient evidence, such as written contracts or bank statements, to demonstrate they were employed by the respondent. The trial court concluded that the appellants did not meet the burden of proof under section 107 of the Evidence Act, and the appeals were dismissed with costs.
employment relationshipunlawful terminationburden of proofevidence act7 min read
JudgmentMoses Murithi Ndaguri VS China Far East Construction Company Limited
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court dismissed the appellants' appeals, finding that they failed to prove they were employed by the respondent as alleged. The appellants did not provide sufficient evidence, such as written contracts or bank statements, to establish the employment relationship despite alleging oral contracts and payment of salaries. The respondent's witness denied the employment relationship and admitted that the appellants were casual employees not employed for more than three months. The court held that the appellants did not meet the burden of proof under section 107 of the Evidence Act, which requires proving facts on a balance of probabilities.
employment relationshipevidence actunlawful terminationburden of proof7 min read
JudgmentStephen Kiogora Guantai VS China Far East Construction Company Limited
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court dismissed the appellants' appeals, finding that they failed to prove an employment relationship with the respondent as alleged. The appellants did not produce sufficient evidence, such as written contracts or bank statements, to establish that they were employed by the respondent. The trial court concluded that the appellants did not meet the burden of proof under section 107 of the Evidence Act, which requires proving facts on a balance of probabilities. The court emphasized that the appellants only produced demand letters and no other documentary evidence, and their witnesses did not corroborate the employment relationship.
employment relationshipevidence actunlawful terminationburden of proof7 min read
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court reviewed the appeal against the lower court's judgment on constructive dismissal. The appellant challenged the lower court's findings that the respondent was constructively terminated despite the respondent not making a prayer for constructive dismissal, the respondent's alleged absconding, shifting of burden of proof, failure to evaluate evidence, disregard for appellant's evidence, and underpayment of salary. The court found that the respondent deserted employment by failing to respond to the show cause letter and subsequent instructions to report to the HR office in Nairobi, thus concluding that the respondent's conduct constituted desertion rather than dismissal. The court upheld the lower court's award of Kshs.141,048.79 for unfair termination, salary for days worked in May 2022, house allowance, underpayment of salary for 8 months, and one-month salary in lieu of notice.
constructive dismissaldesertionshow cause letterunderpayment of salary12 min read
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court dismissed the appellant's appeal against the lower court's judgment in ELRC Cause No. E070 of 2022. The appellant challenged the trial court's allowance of the claimant's suit without giving the respondent a hearing, the finding of unfair termination without hearing the respondent's evidence, and the failure to evaluate the appellant's pleadings and evidence. The court found that the appellant was served with a hearing notice but failed to attend court, thus not being condemned without hearing; the trial court did not err by basing its judgment on the respondent's evidence alone as the appellant did not tender evidence to prosecute its defense; and the award of damages was well-founded and supported by evidence. The appeal was dismissed with costs to the respondent.
unfair terminationhearing noticeevidence evaluationpleadings8 min read
JudgmentZacheas Ndungu Hahanyu VS China Wuyi Company Limited
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The appeal court reviewed the claim of unlawful termination of employment where the appellant alleged unfair dismissal without valid reason or fair procedure. The trial court had found the appellant failed to prove unfair termination on a balance of probabilities, noting he signed a discharge voucher acknowledging receipt of all dues and confirming no further claims. The appeal court upheld this finding, rejecting the appellant's claim that the discharge voucher waived his right to compensation for unfair termination, as the appellant admitted he did not receive termination letters and had only one warning letter despite company policy requiring three warnings for termination. The court concluded the appellant voluntarily left work to claim dues after receiving two warnings, thus terminating employment without unlawful dismissal.
unlawful terminationemployment terminationdischarge voucherbalance of probabilities13 min read
JudgmentTAMARIND MANAGEMENT LIMITED VS ELIJAH GICHUKI GATHERU
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court determined that the appellant unlawfully terminated the respondent's employment without following the required redundancy procedures under section 40 of the Employment Act, 2007. The trial court found the termination was unlawful due to the failure to adhere to redundancy procedures, awarding damages, severance pay, unpaid house allowance, one-month salary in lieu of notice, and a certificate of service. The appellant appealed, arguing the termination was valid under the doctrine of frustration due to the Covid-19 pandemic, but the court upheld the trial judgment that the redundancy procedures were not followed and the termination was unlawful.
employment act, 2007redundancy proceduresdoctrine of frustrationunlawful termination22 min read
JudgmentFrigoken Limited VS Margdaline Khamitwa Musotsi
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court reviewed an appeal against a termination of employment by the appellant. The respondent claimed unlawful termination on account of redundancy, while the appellant argued the termination was due to low plantings and the respondent signed settlement agreements relinquishing claims. The court found the termination was unlawful as it did not follow section 40 of the Employment Act, which requires specific procedures for redundancy. The court upheld the award of 12 months' salary as compensation for unlawful termination, rejecting the appellant's argument that the settlement agreements barred the claim.
employment actunlawful terminationredundancysettlement agreements12 min read
JudgmentRoben Aberdare Limited VS Simeon Misati Merabe
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 dismissal of their counter-claim and award of relief to the respondent, arguing the trial magistrate erred in law and fact by dismissing the appellant's prayers, failing to subject the award to statutory deductions, not finding valid termination reasons, taking irrelevant considerations, and not addressing pleadings and evidence. The trial court had found the dismissal unlawful and unfair, awarding compensation for unfair termination and salary in lieu of notice, but dismissed claims for unremitted NSSF and house allowance. The appeal court upheld the trial court's findings that the dismissal was unlawful and unfair, rejecting the appellant's arguments that the trial court erred in statutory deductions, failure to find valid termination reasons, or taking irrelevant considerations.
employment contracttermination of employmentunfair dismissalstatutory deductions18 min read
JudgmentIhururu Housing Investment Co-operative Society Ltd VS Grace Nyambura
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court reviewed an appeal against a trial court's finding that there was an employment relationship between the parties, which was unfairly terminated by the appellant. The appellant challenged the trial court's conclusion that the respondent was an employee, arguing there was no evidence of a contract of employment, and claimed the trial court improperly nullified a rent tribunal judgment. The court found the trial court correctly determined the respondent was an employee based on oral employment terms, conduct, and evidence from witnesses, and that the termination was unfair due to lack of proper notice and valid reason. The court upheld the trial court's decision to award compensation for unfair termination and service pay.
employment relationshipunfair terminationcontract of employmentrent tribunal15 min read
JudgmentGathuthi Tea Factory Company Limited VS Gerald Wachira Kamunya
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The appellant challenged the lower court's decision on grounds that the respondent was a seasonal worker with contracts ending at the end of each season, all dues were paid upon contract expiry (admitted by respondent), and specific awards for pro-rata leave (Kshs.79,051), overtime (Kshs.12,980), unremitted NSSF deductions (Kshs.29,600), and unremitted NSSF dues (Kshs.25,600) were unsupported by evidence or lacked particulars. The court found the trial judge erred by awarding these sums without evidence, as pay slips showed the respondent was paid pro-rata leave and overtime, and the respondent admitted NSSF contributions were remitted. The appeal succeeded in setting aside the awards.
seasonal employmentpro-rata leaveovertime payunremitted nssf deductions11 min read
JudgmentGathuthi Tea Factory Company Limited VS Rose Mercy Wambui Kaguru
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The appellant challenged the lower court's decision on grounds that the trial magistrate erred in law by failing to appreciate the respondent was a seasonal worker with contracts expiring at the end of each season, and that all dues were paid. The appellant also argued the magistrate awarded pro-rata leave (Kshs.88,941), overtime (Kshs.15,180), and unremitted NSSF deductions without proper evidence or particulars. The court found the trial court's award of these amounts lacked support in the pleadings and evidence, as pay slips showed the respondent was paid leave and overtime, and the unremitted NSSF claims were inconsistent with the respondent's admission that the appellant remitted NSSF for the seasonal contract months.
employment lawseasonal contractspro-rata leaveovertime pay11 min read
JudgmentMichael Kamau Mutahi VS Kenya Biologics Ltd
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 regarding termination of employment and reliefs sought. The court determined that the respondent terminated the appellant's employment unlawfully and unfairly because the appellant was dismissed for refusing to sign a proposed amendment to his contract of employment without being provided adequate information or opportunity to understand the changes, which the appellant reasonably believed would phase out his position. The court found that the appellant was entitled to the reliefs sought in his memorandum of claim, including salary underpayment, overtime, leave, and severance pay, as the termination was not due to redundancy but rather refusal to comply with operational policies. The court also held that the appellant was not estopped from claiming further dues despite an acknowledgment of receipt of Kshs.48,144 as full and final terminal dues.
employment actunfair terminationcontract of employmentrefusal to sign amendment20 min read
JudgmentEsther Njeri Kiarie VS Board Of Management Nguku Secondary School
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 magistrate's judgment dismissing her unfair dismissal claim. The appellant argued that the respondent failed to prove valid termination reasons and procedural fairness, citing the Employment Act and relevant cases. The trial court found the appellant did not prove her case and dismissed the suit with costs. The appeal court upheld the trial court's decision, finding the appellant did not meet her burden of proof on the grounds that the respondent provided sufficient evidence of termination reasons and procedural compliance, including the appellant's failure to respond to a show cause letter and disciplinary issues.
unfair dismissalemployment actprocedural fairnesstermination notice15 min read
Employment and Labour Relations Court at Nyeri ELRCOnesmus Makau
Division and case type: Employment and Labour Relations Court·Appeals
The court dismissed the appellant's motion seeking payment of 11 months' salary and gratuity. The court found that the appellant failed to properly plead and prove that the service charge (Kshs. 31,058.51) was part of his salary for the suspension period, as it was dependent on sales performance and not a fixed monthly payment. The court also upheld that gratuity is subject to statutory deductions including PAYE tax, as the appellant did not challenge the original judgment's direction. The appellant was ordered to pay costs of the motion.
employment lawsalary calculationgratuitypaye tax6 min read
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