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ELRCPartially AllowedNot stated in the excerpt (Memorandum of Appeal lodged 16 October 2023)

Amee Holdings Limited v Okwiri (Appeal E056 of 2023) [2024] KEELRC 1180 (KLR)

Employment and Labour Relations Court
8 May 2024
1,419 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court upheld wage and house allowance awards against Amee Holdings but cancelled a 12-month compensation award because the ex-employee couldn't prove unfair termination.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Kisumu (Radido Stephen, J) heard a first appeal by Amee Holdings Ltd against a judgment of the Senior Principal Magistrate delivered on 22 September 2023, which found that the company unfairly terminated Charles Amondi Okwiri's employment and awarded him 12 months' salary as compensation, underpayments and house allowance. The appeal raised seven grounds attacking the finding of unfair termination, the quantum of compensation, the awards on underpayments and house allowance, and the magistrate's treatment of submissions. Applying the first-appeal standard drawn from Kamau v Mungai (2006) 1 KLR 150, the Court re-evaluated the evidence. It held that under section 47(5) of the Employment Act the employee bears the initial burden of establishing that unfair termination occurred before the employer is called to justify it. The Respondent never stated the date or month of the alleged verbal termination nor identified who communicated it, and so failed to discharge even the very low threshold burden. The magistrate erred by proceeding directly to the sections 41 and 45 inquiry. That limb of the judgment, including the compensation award, was set aside and substituted with a finding that unfair termination was not proved. However, the awards of underpayments were upheld because the employer issued no written contract, invoking section 10(7) of the Act to accept the Respondent's testimony, and the house allowance award stood because the employer showed neither provision of housing nor a consolidated wage. Since the Appellant succeeded only in part, each party was ordered to bear their own costs of the appeal, while the Respondent retained costs before the magistrate's court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Respondent proved unfair termination of employment under section 47(5) of the Employment Act
  2. 2.Whether the Senior Principal Magistrate erred in awarding 12 months' salary as compensation for unfair termination
  3. 3.Whether the award of underpayments was justified
  4. 4.Whether the award of house allowance was justified
  5. 5.The role of a first appellate court in re-evaluating evidence

Key legal issues

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01

Whether the Respondent proved unfair termination

Holding

The Respondent did not discharge the burden under section 47(5); he did not state the date or month of the alleged verbal termination or identify who terminated his employment.

Reasoning

The employee bears the initial threshold burden under section 47(5) of establishing that unfair termination occurred before the employer must justify it. The claim, witness statement and oral testimony omitted the date or month of the alleged verbal termination and the identity of the manager or agent who communicated it. Without these, the very low threshold was not met. The trial magistrate erred by skipping this first-stage inquiry and proceeding straight to whether the employer satisfied sections 41 and 45. That part of the judgment was set aside.

p. 3
02

Underpayments

Holding

The award of underpayments was upheld; the magistrate did not err.

Reasoning

Section 9 of the Employment Act requires an employer to issue a written contract stating designation and remuneration. The Appellant issued no such contract. Its own witness conceded the Respondent was engaged in a different capacity from 2019 without disclosing what that capacity was. Under section 10(7), the court therefore accepted the Respondent's oral testimony that he was a machine operator paid below the prescribed minimum wage of Kshs 18,319/- under the Regulation of Wages (General)(Amendment) Order, 2018.

p. 4
03

House allowance

Holding

The award was upheld since the Appellant did not show housing was provided or that the wage was consolidated.

Reasoning

Under section 31 of the Employment Act, an employer must provide housing or a house allowance unless the wage is consolidated. The Appellant produced no records showing it housed the Respondent or that his wages were consolidated, so the finding that the magistrate did not err in allowing that head of claim was confirmed.

p. 4

Legal principles established

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  • On a first appeal, the court must re-evaluate the evidence and reach its own conclusions, making due allowance for not having seen or heard the witnesses.
  • Under section 47(5) of the Employment Act, the employee bears the initial burden of establishing that unfair termination occurred before the employer is called upon to justify the termination.
  • Where an employer fails to issue a written contract as required by section 9 of the Employment Act, the court accepts the employee's oral testimony on wages under section 10(7).

Court orders

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  1. 1.The part of the judgment finding that the Appellant unfairly terminated the Respondent's employment and awarding compensation is set aside, and substituted with a finding that the Respondent did not prove unfair termination
  2. 2.The judgment of the Senior Principal Magistrate is otherwise confirmed (underpayments and house allowance awards stand)
  3. 3.Each party to bear their own costs of the Appeal
  4. 4.The Respondent to have costs before the Senior Principal Magistrates Court

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Senior Principal Magistrate's Court
Not stated
Jurisdiction invoked
First appellate jurisdiction under the Employment Act / ELRC Act over a decision of the Senior Principal Magistrate (not expressly cited)

Relief refused

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Costs of the appeal

The Appellant succeeded only in part

p. 4

Costs

Each party to bear own costs of the Appeal; the Respondent to have costs before the Senior Principal Magistrates Court.

Quotable passages

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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, it was the duty of the Court…. To re-evaluate the evidence, assess it and reach its own conclusions remembering that it had neither seen nor heard the witnesses and hence making due allowance for that.
p. 2Role of a first appellate court
By virtue of section 47(5) of the Employment Act, 2007, the Respondent had the initial burden of establishing that an unfair termination of employment occurred before the Appellant would be called upon to justify any termination of employment.
p. 3Burden of proof in unfair termination
The Court sets aside the part of the judgment finding that the Appellant unfairly terminated the Respondent’s employment and awarding compensation, and substitutes thereof judgment that the Respondent did not prove unfair termination of employment occurred.
p. 4Final orders - unfair termination finding set aside
Since the Appellant has succeeded only part, the Court directs each party to bear own costs of the Appeal.
p. 4Costs of the appeal

Issues in the judgment

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minor

The case number of the appeal is not stated anywhere in the judgment.

minor

Name and rank designation of the trial magistrate (beyond 'Senior Principal Magistrate') and the trial court case number are not disclosed.

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, "Amee Holdings Limited v Okwiri (Appeal E056 of 2023) [2024] KEELRC 1180 (KLR)", Case Analysis (2024). Not stated in the excerpt (Memorandum of Appeal lodged 16 October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1180/eng@2024-05-08

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