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Court of AppealPartially AllowedNairobi ELRC Appeal arising from Nairobi ELRC No. 1607 of 2014· [2026] KECA 407 (KLR)

Robert Nderitu T/A Nairobi Millenium Fast Food v Samuel Mwangi Kariuki

Court of Appeal of Kenya
27 February 2026
2,813 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal confirmed a chef was unfairly dismissed by an employer who denied employing him, but cut his compensation to the amount he actually claimed.

What this practically means

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Executive summary

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The Court of Appeal (M'Inoti, Nyamweya and Odunga, JJA) partly allowed the appellant's appeal against a judgment of the Employment and Labour Relations Court at Nairobi (Nduma J) which had found that he unlawfully and unfairly dismissed the respondent, a chef, on 18th December 2013 after taking over a hotel business on Moi Avenue. The appellant denied ever employing the respondent, contending he ran a different restaurant through Goldeneye Enterprises Limited. The appellate court re-evaluated the evidence as a first appellate court, guided by Selle v Associated Motor Boat Co, Jabane v Olenja and Mbogo v Shah, and agreed with the trial judge that the respondent's account of the takeover and termination was credible while the appellant's was a bare denial; an oral contract of service sufficed under section 2 of the Employment Act. The appeal succeeded only on quantum of compensation: although section 49 permits up to twelve months' salary as compensation and the trial judge gave reasons grounded in aggravating circumstances, the respondent had specifically pleaded Kshs. 39,000/- as damages for unfair dismissal and never amended his pleadings, so the award of Kshs. 130,000/- (ten months' salary) granted a remedy not sought and was set aside and substituted with Kshs. 39,000/-. The awards of one month's notice pay (Kshs. 13,000/-) and service gratuity (Kshs. 54,600/-) were upheld, producing a total award of Kshs. 106,600/- with interest from the date of the appellate judgment. The appellant was condemned to pay the costs of the suit and of the appeal.

Key legal issues

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01

Existence of an employer-employee relationship

Holding

The respondent established an employment relationship with the appellant on a balance of probabilities; the appellant's denial did not controvert the respondent's credible account.

Reasoning

Section 2 of the Employment Act defines an employer as one who enters into a contract of service, which may be oral or written, express or implied. The respondent testified he was employed as a chef by the previous owners and then by the appellant upon takeover. The appellant did not deny operating a hotel at the same premises commencing around the time of termination, so his evidence corroborated the respondent's account rather than rebutting it.

p. 4
02

Award of compensation exceeding pleaded claim

Holding

The trial judge misdirected himself by awarding Kshs. 130,000/- (ten months' salary) when the respondent had specifically pleaded Kshs. 39,000/- and never amended his pleadings.

Reasoning

Although section 49 of the Employment Act permits compensation of up to twelve months' salary and the award was within that statutory ceiling, a court cannot grant a remedy that was not sought. The respondent specifically claimed Kshs. 39,000/- in his statement of claim and did not amend pleadings. Granting more than pleaded was an error warranting appellate interference, and the award was set aside and substituted with the pleaded sum.

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Duty of a first appellate court

Holding

As a first appellate court, the Court of Appeal reconsiders and re-evaluates the evidence and draws its own conclusions, departing from trial findings only where they were not based on the evidence, where wrong principles of law were applied, or where discretion was exercised injudiciously.

Reasoning

Relying on Selle v Associated Motor Boat Co Ltd, Jabane v Olenja and Mbogo v Shah, the court restated the standard: it must reconsider and evaluate the evidence afresh but will not disturb findings that are grounded in the record, made on correct principles, or reached through a judicious exercise of discretion.

p. 3
04

Discretion under section 49 of the Employment Act

Holding

Compensation under section 49 is discretionary, capped at twelve months' salary, and each case must be decided on its own facts; the discretion must not be capricious or whimsical.

Reasoning

Following Kenfreight (E.A) Limited v Benson K. Nguti and Ol Pejeta Ranching Limited v David Wanjau Muhoro, the court affirmed that once unlawful termination is established, the judge exercises discretion over section 49 remedies, and an appellate court will not interfere absent misdirection or manifest error occasioning injustice.

p. 4

Legal principles established

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  • A trial judge may not award compensation for unfair dismissal exceeding the amount specifically pleaded, absent amendment of pleadings.
  • An employment relationship may be established by oral testimony; a contract of service may be oral, written, express or implied.
  • An appellate court will not interfere with a trial judge's exercise of discretion on compensation unless it was exercised injudiciously or capriciously.

Court orders

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  1. 1.Appeal partially allowed only to the extent of setting aside the award of Kshs. 130,000/- as compensation for unlawful and unfair dismissal
  2. 2.Substituted an award of Kshs. 39,000/- as compensation for unlawful and unfair dismissal
  3. 3.Upheld the other awards of the trial court, with the result that the total award payable is Kshs. 106,600/-
  4. 4.Interest on the total award at court rates from the date of the appellate judgment until payment in full
  5. 5.Appellant to meet the costs of the suit in the ELRC and of this appeal
On appeal from
Employment and Labour Relations Court at Nairobi
Nairobi ELRC No. 1607 of 2014
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal over the Employment and Labour Relations Court

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Robert Nderitu T/A Nairobi Millenium Fast Food v Samuel Mwangi Kariuki", Case Analysis (2026). Nairobi ELRC Appeal arising from Nairobi ELRC No. 1607 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/407/eng@2026-02-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.