Hakika Transport Services Limited & another v Nyongesa & another (Appeal E116 of 2023) [2024] KEELRC 438 (KLR)
The bottom line
#A Kenyan court threw out awards for notice pay, leave pay, and house allowance against an employer because the driver's dismissal followed a fair process and he had already been paid what he was owed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether notice pay was payable given that the respondent was taken through a fair disciplinary process
- 2.Whether accrued leave days were already compensated in the final dues
- 3.Whether house allowances were payable on top of the contractual house allowance
Key legal issues
#Notice pay
Notice pay not justified where due process was followed and employer discharged its burden under sections 43(1) and 45(2).
Section 35 provides for notice or pay in lieu. Where termination is for misconduct and the employee was invited to a disciplinary hearing and allowed to call witnesses, due process is not faulted and notice pay does not accrue. The employer having discharged its burden of proving a valid reason, notice pay ought not be awarded.
Accrued leave pay
Award set aside as leave for 2020 and prorated 2021 was already paid in final dues.
Section 28(2) caps leave accrual at 18 months. The appellant produced a payment statement showing payment of 21 days for 2020 at Kshs. 16,720 and prorated 12 days for 2021 at Kshs. 9,554. A further award would negate that evidence and amount to double payment.
House allowance
Award set aside; wages already included contractual house allowance exceeding the statutory 15% of minimum wage.
A truck driver in Mombasa in 2020 earned a minimum wage of Kshs. 17,561; house allowance at 15% would be Kshs. 2,634.15, giving a total gross of Kshs. 20,195.15. The respondent was paid basic wage plus a contractual house allowance within that range, so claiming outside the contract and minimum wage would be unjust enrichment.
Legal principles established
#- Where employment is terminated for misconduct but the employee is taken through a fair disciplinary process, notice pay does not accrue.
- Where an employer has compensated untaken leave days in final dues, a further award of leave pay amounts to double payment.
Court orders
#- 1.The awards for notice pay, leave pay and house allowances in the judgment delivered 19 October 2023 in Mombasa CM ELRC No. E180 of 2022 are set aside
- 2.The appeal is allowed
- 3.Each party is to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court (ELRC), Mombasa
- CM ELRC No. E180 of 2022
- Jurisdiction invoked
- First appeal from the magistrates' court pursuant to the Employment Act framework / ELRC appellate jurisdiction
Relief refused
#Confirmation of the lower court's awards
The awards were not justified on the evidence
Respondent's costs
Each party to bear own costs
Costs
Each party is to bear its own costs.
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.
However, where employment is terminated due to misconduct and the employee is taken through a fair disciplinary process, he cannot justify a claim in notice pay.
Section 28(2) of the Act only allows an employee to accrue leave days for up to 18 months.
to claim outside his employment contract and the minimum wage allowed is an unjust enrichment.
In this analysis, the appeal is with merit. The awards for notice pay, leave pay, and house allowances allocated in the judgment delivered on 19 October 2023 in Mombasa CM ELRC No. E180 of 2022 is not justified. To this extent, the awards are hereby set aside and the appeal allowed. Each party is to bear its own costs.
Issues in the judgment
#Claim figure inconsistent: notice pay claimed at Ksh. 26,41 in reliefs but Ksh. 26,410 in the judgment body
Appellant's stated basic wage inconsistent between paragraphs (Kshs. 18,000 vs Ksh. 14,200)
Typographical error 'My place of employment is Jomvu, Changamwe'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hakika Transport Services Limited & another v Nyongesa & another (Appeal E116 of 2023) [2024] KEELRC 438 (KLR)", Case Analysis (2024). Mombasa ELRC Appeal No. E180 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/438/eng@2024-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.