Shikanga v G4S Kenya Limited (Appeal E054 of 2023) [2024] KEELRC 1335 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.The role of the Court on a first appeal
- 2.Whether the Principal Magistrate erred in principle in awarding only one month's salary as compensation for unfair termination
- 3.Whether the award of compensation should be enhanced
Key legal issues
#Role of a first appellate court
The Court is duty-bound to re-evaluate the evidence and reach its own conclusions while making allowance for not having seen or heard the witnesses
The Court adopted the guidance in Kamau v Mungai on the role of a first appellate court, and stated it would bear in mind the interdict on its role when reviewing the Principal Magistrate's award.
Whether the Principal Magistrate erred in principle in the award of compensation
Although the trial magistrate lawfully considered only the circumstances of termination under section 49(4)(b), he erred by ignoring the employee's 14 years of service, clean disciplinary history, and by excluding overtime from gross salary
Section 49(4) enumerates 13 factors, of which the magistrate considered only one. Section 45(4) requires the employer to act in accordance with justice and equity, mandating consideration of length of service and disciplinary record. Section 49(1)(c) makes gross salary, including overtime, the dominant factor in computing compensation.
The appropriate quantum of compensation
Compensation equivalent to 4 months' gross salary was just and appropriate, i.e. Kshs 102,160/-
Weighing the 14 years of service, the absence of adverse disciplinary history, the reasonable suspicion regarding the Appellant's conduct, and the correct gross salary of Kshs 25,540/-, the Court found one month's compensation inadequate and fixed compensation at four months' gross salary.
Legal principles established
#- On a first appeal, the Court has a duty to re-evaluate the evidence, assess it and reach its own conclusions while making due allowance for not having seen or heard the witnesses
- In awarding compensation under section 49 of the Employment Act, the Court must consider the length of service and disciplinary history of the employee to act in accordance with justice and equity
- Gross salary, which includes overtime, is a dominant factor in computing compensation under section 49(1)(c) of the Employment Act
Court orders
#- 1.The award of 1-month compensation is vacated and set aside and substituted with an award of Kshs 102,160/- as compensation (equivalent to 4 months' gross salary)
- 2.The Appellant to have costs of the Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrate's Court
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Principal Magistrate's Court in employment matters
Relief refused
#Enhancement of compensation to the maximum 12 months gross salary under section 49(1)(c) of the Employment Act
The Court found 4 months' gross salary just and appropriate, considering length of service, disciplinary history and the circumstances of termination
Costs
The Appellant to have 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, 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.
The Principal Magistrate should have put into consideration the length of service and disciplinary history of the Appellant to bring himself within the tenets set out in section 45(4) of the Employment Act, 2007 which requires an employer to act in accordance with justice and equity.
Flowing from the above the Appeal succeeds to the extent that the award of 1-month compensation is vacated and set aside and substituted with an award of Kshs 102,160/- as compensation.
The Appellant to have costs of the Appeal.
Issues in the judgment
#The neutralCitation field is mandated as a string but no neutral citation appears in the judgment; the case number used is 'Kisumu Appeal No. E054 of 2023' from the last page header
The judgment refers to section 45(4) of the Employment Act in the compensation analysis, though the statutory factors for compensation are set out in section 49; possible internal inconsistency in the section reference
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shikanga v G4S Kenya Limited (Appeal E054 of 2023) [2024] KEELRC 1335 (KLR)", Case Analysis (2024). Kisumu Appeal No. E054 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1335/eng@2024-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.