H. Young & Company (E.A) Limited v Evans Agulo Ovonyoli
The bottom line
#Kenya's Court of Appeal cut an unfair dismissal award from 8 months' salary to 1 month, ruling compensation must match an employee's length of service.
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 respondent was entitled to 8 months' salary as compensation for unfair dismissal when he had only worked for a period of 5 months
- 2.Whether the respondent was lawfully entitled to an award of Ksh. 22,412 being leave allowance
- 3.Whether the respondent, having acted in person, was entitled to costs
Key legal issues
#Quantum of compensation for unfair dismissal relative to length of service
The 8 months' salary award was set aside and substituted with 1 month's salary because the respondent worked barely 6 months, may have contributed to the loss through fuel pilferage, and the trial judge relied on extraneous considerations.
Section 49 remedies are discretionary and governed by the 13 considerations in section 49(4), including the employee's contribution to the termination and length of service. The trial judge wrongly took into account the respondent's earlier engagement (for which he was paid terminal dues) and his relocation from Kakamega. The fuel consumption differential suggested the respondent was not completely absolved, making the maximum-equivalent award unjustified.
Entitlement to leave allowance for less than 12 months' service
Under section 28(b) of the Employment Act, an employee terminated after two or more consecutive months earns 1.75 days' leave per completed month; the respondent earned 8.75 days, and after 6 days' compulsory leave was entitled to Ksh. 2,934 only.
Section 28(a) grants 21 days' leave after 12 consecutive months of service, which the respondent had not served. Section 28(b) applies where employment is terminated after two or more consecutive months in a leave-earning period, yielding pro-rated leave. The appellant's calculation of 8.75 days, less the 6 days already taken, was accepted by the Court.
Costs for a litigant acting in person
A successful litigant in person is entitled to costs, but limited to disbursements and court attendance, excluding instructions fees.
Section 27(1) of the Civil Procedure Act provides that costs follow the event. The respondent succeeded against the appellant at trial and so was entitled to costs, but the Court limited them to disbursements and court attendance rather than instructions fees, accommodating the fact that he acted in person.
Legal principles established
#- Remedies for unfair termination under section 49 of the Employment Act are discretionary, not mandatory, and must be guided by the section 49(4) considerations including length of service and employee contribution.
- A trial judge must justify an award of compensation and may not rely on extraneous matters; discretion must not be capricious or whimsical.
- On a first appeal the Court of Appeal re-evaluates the evidence afresh and determines whether the trial court's conclusions should stand.
- Costs follow the event under section 27(1) of the Civil Procedure Act, but a litigant in person is limited to disbursements and court attendance, not instructions fees.
Court orders
#- 1.Kshs. 22,412 being one month's salary in lieu of notice
- 2.Kshs. 14,941 being 20 days' salary for the period 16th June - 5th July 2011
- 3.Kshs. 22,412 being 1 month salary compensation for unfair dismissal
- 4.Kshs. 2,934 as pro-rated leave allowance
- 5.Total Kshs. 62,699 plus interest at court rates from the date of the judgment at the trial till payment in full
- 6.Costs of the suit before the Employment and Labour Court to the respondent
- 7.Each party to bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Industrial Court (Employment and Labour Relations Court) at Nairobi
- Industrial Court Cause No. 1614 of 2011
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court's Rules (Rule 29(1)(a) of the Court of Appeal Rules) against the judgment of the Industrial Court
Relief refused
#8 months' salary as compensation for unfair dismissal
Award was not justified; the trial judge considered extraneous issues and the respondent contributed to the loss; reduced to 1 month's salary
Full leave allowance of Ksh. 22,412
Respondent had worked only 5 months; entitled only to pro-rated leave of 2.75 days after 6 days' compulsory leave, i.e. Ksh. 2,934
Costs of the appeal
In view of the partial success, each party ordered to bear its own costs of the appeal
Costs
Costs of the suit before the Employment and Labour Court awarded to the respondent; each party to bear its own 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.
This being a first appeal, we are reminded of our primary role as first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.
It is now trite that the reliefs stipulated under this section are discretionary rather than mandatory.
the trial Judge must justify or explain why a claimant is entitled to the maximum award; that the exercise of discretion must not be capricious or whimsical.
We, therefore, interfere with that award, set it aside and substitute therefor 1 month salary as compensation for unfair termination.
In view of the above outcome, we order that each party bears its own costs of this appeal. We so order.
Issues in the judgment
#Judgment refers to 'section 49(10)(c)' of the Employment Act, an apparently non-existent provision (likely section 49(1)(c)).
Claim cites 'section 49C of the Employment Act 2007', an apparently non-existent provision.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "H. Young & Company (E.A) Limited v Evans Agulo Ovonyoli", Case Analysis (2022). Civil Appeal 172 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/599/eng@2022-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.