JudgmentEpco Builders Ltd VS Mr.albert Lugaka Malongo
Case law
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Division and case type: Appeals DivisionAppeals
The court reviewed an appeal from a trial magistrate's judgment that found the Respondent was unfairly terminated and awarded compensation. The Appellant (EPCO Builders Limited) challenged the trial court's findings, arguing that the Respondent had voluntarily resigned via a letter dated 17th August 2020, which the Respondent signed a terminal dues form acknowledging. The court determined that the Respondent resigned voluntarily, the termination letter and certificate of employment were forgeries, and the trial court erred in finding unfair termination. The court set aside the trial judgment and found the Claimant not wrongfully terminated, awarding the Appellant costs.
Division and case type: Appeals DivisionAppeals
The court upheld the trial court's judgment in favor of the respondent for unfair termination, finding that the termination lacked valid reasons and procedural fairness under the Employment Act. The court rejected the appellants' appeal on grounds that the respondent was entitled to 12 months' compensation despite working only 3.5 months, one month's salary in lieu of notice, payment in lieu of leave days, and statutory deductions, as the evidence supported the respondent's claim of unfair dismissal. The court determined that the appellants failed to prove the reasons for termination and the procedural steps were not followed, thus upholding the trial court's findings.
Division and case type: CivilCivil Case
Abdullah & another v Chari & another (Civil Case E007 of 2021) [2024] KEHC 16144 (KLR) (20 December 2024) (Judgment) Neutral citation: [2024] KEHC 16144 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NYERI CIVIL CASE E007 OF 2021 MA ODERO, J DECEMBER 20, 2024 BETWEEN HAWO SHANKO ABDULLAH .......................................................... 1ST PLAINTIFF ZAMZAM GOBE GARO .....................................................................
Division and case type: Appeals DivisionAppeals
The appellant appealed against a subordinate court ruling that allowed the respondent's preliminary objection to the appellant's employment claim. The court found the subordinate judge misdirected on jurisdiction and law, as the Civil Procedure Act was not applicable to employment disputes before the Employment and Labour Relations Court. The appeal was dismissed with costs to the respondent, but the court reinstated the claim and transferred it to Mavoko Magistrate Court under the 2024 procedural rules for hearing.
Division and case type: Appeals DivisionAppeals
The appellant, Gathura Investments Limited, appealed against the Senior Principal Magistrate's judgment in a case where the respondent, Joseph Musee Musikali, claimed unfair termination and contractual dues. The court reviewed the issue of whether the respondent was unlawfully terminated and whether the termination was unfair. The court found that the appellant failed to prove reasonable efforts to contact the respondent or issue a show cause notice, thus the termination was valid. The court upheld the lower court's decision that the respondent was entitled to the reliefs sought, including terminal and contractual dues, costs, and interest.
Division and case type: Appeals DivisionAppeals
The court considered an appeal against a lower court's judgment in a termination dispute. The respondent (claimant) sought compensation for unfair termination, while the appellant (employer) appealed the lower court's findings on procedural fairness and remedies. The court determined that the appellant provided the respondent with a show cause letter and an opportunity to respond, but the respondent declined to give a comprehensive explanation, thereby squandering the opportunity to be heard. The court held that the trial court erred in finding procedural unfairness and the remedies awarded, as the respondent's refusal to respond to the show cause letter constituted a failure to utilize the internal grievance process, not a denial of procedural fairness. The appeal was allowed, with the lower court's judgment set aside and the suit dismissed.
Division and case type: Appeals DivisionAppeals
The appellant appealed against a trial court ruling that dismissed their application for review of a judgment dated May 8, 2020. The appellant claimed the trial magistrate erred in law and fact by dismissing their review application, arguing new evidence (a CR12 showing no relationship between the appellant and the claimant's alleged employer) was sufficient to review the judgment. The court upheld the trial magistrate's decision, finding the appellant failed to meet the threshold for review under Rule 74(1) of the ELRC (Procedural) Rules 2024, as the CR12 was not within their knowledge despite due diligence and the appellant did not properly plead the third-party claim. The appeal was dismissed for lack of merit.
Division and case type: Appeals DivisionAppeals
The appellate court set aside the lower court's award of Kshs. 710,401.84 to the claimant for unfair termination, underpayment, housing allowance, and leave pay, finding the claimant's termination was not procedurally fair and the evidence did not support the award of six months' salary compensation. The court determined the respondent's employment was not terminated unlawfully but was affected by desertion, and substituted the award with one month's notice pay for procedural unfairness amounting to Kshs. 15,141.95. The court held the burden of proof for unfair termination rested on the claimant, who failed to demonstrate procedural fairness despite the respondent's desertion.
Division and case type: Appeals DivisionAppeals
The appellant appealed against the lower court's judgment, arguing that the learned Principal Magistrate erred in law and fact by holding the claimant's services were unfairly terminated, awarding time-barred leave and house allowances, and failing to consider the claimant's conduct. The court re-evaluated the evidence and found the trial court erred in not determining whether the claimant was absent without permission, leading to the dismissal of the appeal and setting aside the lower court's orders on time-barred claims and compensatory damages.
Division and case type: Appeals DivisionAppeals
The appellant appealed against the trial court's judgment in favor of the respondent, arguing that the appellant lacked legal capacity to be sued as an unincorporated entity under the Societies Act Cap 108 of Kenya. The court determined that the issue of locus standi did not arise at trial as the appellant did not raise it as a preliminary objection or plead it in their defense, and submissions do not constitute evidence. The court upheld the respondent's claim for unfair termination, unpaid salary, leave, and other reliefs, finding the appellant's arguments on capacity and evidence insufficient to overturn the trial court's findings.
Division and case type: Appeals DivisionAppeals
The court granted a stay of execution pending the appeal in CMEL No. 1576 of 2019, requiring the applicant to deposit half the decretal sum in a joint interest-earning account within 30 days. The applicant sought to stay the subordinate court's orders due to an ex parte judgment and alleged potential substantial loss from execution, including closure of their restaurant business. The court found the applicant met the criteria for stay under Order 42 Rule 6(2) of the Civil Procedure Rules, including showing substantial loss risk and timely application, while the respondent provided no evidence of being in gainful employment to refute the claim of inability to refund the decretal sum if the appeal succeeded.
Division and case type: Appeals DivisionAppeals
The Appellant appealed against the Trial Magistrate's judgment finding the Claimant unfairly terminated, awarding one month's salary in lieu of notice, 6 months' salary compensation, leave pay, and salary for July-August-September 2019. The appeal argued the Trial Magistrate erred in law and fact by shifting burden of proof to the Respondent, misdirecting on the law and facts, and awarding awards not supported by evidence. The court upheld the appeal, finding the Trial Magistrate erred in law and fact by misapplying the Employment Act, failing to weigh evidence properly, and awarding compensation not supported by the evidence on record.
Division and case type: Appeals DivisionAppeals
The court considered an appeal where the Appellant challenged the trial court's dismissal of her claim for unlawful termination. The court found that the trial court erred in finding the termination lawful as the Appellant failed to prove unfair dismissal despite the Respondent claiming she absconded work in August 2020. The court determined the Appellant did not meet the burden of proof under section 47(5) of the Employment Act to establish unfair termination, and the trial court's dismissal was correct.
Division and case type: Appeals DivisionAppeals
The court reviewed an appeal where the Appellant challenged the trial court's finding that she failed to prove her claim on a balance of probability. The Appellant argued that the Respondent terminated her employment unfairly due to the alleged missing file, which was later retrieved, and that procedural fairness was violated under Section 41 of the Employment Act. The court determined that the trial court correctly found the Appellant failed to prove her case on a balance of probability, as the evidence showed the Appellant engaged in misconduct, including refusing to hand over documents and insubordination, justifying summary dismissal under Section 44 of the Employment Act.
Division and case type: Appeals DivisionAppeals
The court considered an appeal where the appellant challenged the trial magistrate's ruling that their suit was barred by res judicata due to a prior High Court case (HCCC No. E049 of 2019). The appellant argued that their suit (CMELRC No. 1436A of 2019) was not res judicata because the parties and issues differed from the prior case, and the High Court lacked jurisdiction over employment disputes under Section 162(5) of the Constitution. The court found the trial magistrate erred by treating the suits as the same issue, as the appellant's claim was not an employment matter but a commercial dispute disguised as one, and the High Court had no jurisdiction to hear employment claims. The appeal was allowed, with the case remitted to the Chief Magistrate Employment and Labour Relations Court.
Division and case type: Appeals DivisionAppeals
The court dismissed the appellant's appeal against the trial court's award of Kshs. 396,000 in house allowance and six months' compensation for unlawful dismissal. The appellant challenged the trial court's findings on statute bar of the house allowance claim, excessive quantum of compensation, and failure to consider section 90 of the Employment Act. The court held that the claim for house allowance was not statute barred as it was filed within 12 months of termination (2nd July 2020 to 1st March 2021), and the six-month compensation award was not excessive given the appellant's good faith and lack of evidence showing the trial court misdirected itself.
Division and case type: Appeals DivisionAppeals
The court considered an application to file an appeal out of time from a judgment in Nairobi CMELRC Cause No. E590 OF 2020 delivered on 16th July 2021. The applicant claimed his previous advocates failed to inform him of the judgment until August 2021, and the lower court delayed certifying typed proceedings until 28th July 2023. The court found the delay was not inordinate as the applicant had a certificate of delay from the lower court, and mistakes by previous counsel constituted sufficient cause under the East African Rule. The court granted leave to appeal out of time, noting the applicant's actions were within the bounds of the law and the appeal had arguable merits.
Division and case type: Appeals DivisionAppeals
The Appellant appealed against parts of the trial court's judgment, arguing the trial magistrate contradicted herself by holding the Respondent's employment started in August 2015 yet awarding salary underpayments for 2013-2015, erred in law by failing to apply wage regulations, and misdirected herself on evidence regarding unpaid salary for specific periods. The Appellant also argued the Respondent absconded and was terminated for gross misconduct. The Respondent cross-appealed, claiming the appeal was filed out of time and the trial court erred in finding the Respondent did not prove drugging or receiving a show cause letter. The court allowed the appeal, setting aside the awards for underpayments and unpaid salary for the specified periods, finding the Respondent's claims were not proven.
Division and case type: Appeals DivisionAppeals
The court addressed a Notice of Motion application filed by the Appellant seeking a stay of proceedings in Nairobi Chief Magistrates Court Employment Cause No. 1085 of 2023 pending the hearing of an appeal. The Appellant argued that the trial court lacked jurisdiction over constitutional issues, while the Respondent opposed on grounds that the appeal was premature, defective, and an abuse of process. The court dismissed the Respondent's preliminary objection, finding the appeal was arguable under the Civil Procedure Act and that the application was not prematurely filed, thus granting a stay of proceedings and costs.
Division and case type: Appeals DivisionAppeals
The Employment and Labour Relations Court dismissed both the Respondent’s Motion to review and set aside the August 2024 judgment, and the Claimant’s Motion to review the judgment for an award of unpaid June 2018 salary. The Court found the Respondent’s Motion lacked merit as he had been given an opportunity to lead evidence but chose not to, and the Claimant’s Motion was dismissed due to no error apparent on the face of the record regarding the unpaid salary claim.