Moi University v Soga & 22 others (Appeal E010 of 2024) [2024] KEELRC 1387 (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 Respondents were casual or contract employees
- 3.Whether there was an unfair termination of employment justifying compensation
- 4.Whether the award of accrued leave was warranted
- 5.Whether the award of salary arrears was warranted
- 6.Whether the award of severance pay was warranted
Key legal issues
#Whether the Respondents were casual or contract employees
They were contract employees on written fixed-term contracts, not casual employees, because their daily-rated wages were cumulated and paid at the end of the month
The Court distinguished casual employment from fixed-term contract employment by reference to the payment pattern. The Appellant had issued written 6-month fixed-term contracts. Wages were computed on daily rates but paid monthly, which is inconsistent with casual employment where each day's work is a distinct contract and payment is made daily.
Whether there was unfair termination of employment
The Respondents failed to prove unfair termination under section 47(5) of the Employment Act; the award of compensation without a finding of unfair termination was an error of law
The Respondents did not plead unfair termination in their Statement of Claim and offered only a general statement that the termination was unfair, without evidence of how it was unfair. The Chief Magistrate never made an explicit finding of unfair termination, yet awarded 12 months' compensation, a remedy available only upon such a finding. The Court re-evaluated the evidence on first appeal and found the burden unmet.
Accrued leave
The Chief Magistrate did not err in allowing the accrued leave claim
Section 28 of the Employment Act contemplates annual leave on full pay, and section 40(1)(e) requires payment in cash of accrued leave upon redundancy. Although the Respondents took leave days in instalments, the Appellant produced no records showing the leave/ofi days were paid, so the Respondents were entitled to full payment for those days.
Salary arrears
The award of salary arrears was an error of fact and law given the Respondents' witness's admission that none were owed
The Respondents' sole witness admitted during cross-examination that the Appellant did not owe any salary arrears and repeated the admission on re-examination. The trial court's failure to appreciate this evidence constituted an error of both fact and law, warranting the setting aside of that head of the award on appeal.
Severance pay
The Chief Magistrate did not err in awarding severance pay under section 40(1)(g) of the Employment Act
The Respondents lost their contracts on account of redundancy, entitling them to severance pay under section 40(1)(g). The Appellant did not point to any record placed before the Chief Magistrate proving payment of severance pay, so the trial court's finding that final dues were unpaid stood.
Legal principles established
#- On a first appeal, the court must re-evaluate the evidence and reach its own conclusions while making due allowance for not having seen or heard the witnesses
- Compensation under the Employment Act is only awardable where the court makes a finding of unfair termination of employment
- A casual employee is one paid at the end of each day, with each day's work a distinct contract; employees on daily rates cumulated and paid monthly are not casual employees
- Under section 47(5) of the Employment Act, an employee bears the initial burden of showing that an unfair termination occurred
Court orders
#- 1.The judgment of the Chief Magistrate awarding compensation and salary arrears is set aside/vacated and substituted with an order disallowing these heads of claim
- 2.The awards of accrued leave and severance pay are upheld
- 3.Each party to bear own costs of the Appeal
- 4.The Respondents to have costs before the Subordinate Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrates Court, Siaya
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Chief Magistrates Court in employment and labour relations matters
Relief refused
#Compensation for unfair termination (12 months) awarded by the Chief Magistrate
No finding of unfair termination was made and the Respondents failed to discharge the burden under section 47(5) of the Employment Act
Salary arrears from March 2018 to September 2019
The Respondents' own witness admitted in cross-examination and re-examination that no salary arrears were owed
Costs
Each party to bear own costs of the Appeal; the Respondents to have costs before the Subordinate Court
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.
In light of the above, the judgment of the Chief Magistrate awarding compensation, and salary arrears are set aside/vacated and substituted with an order disallowing these heads of claim.
For clarity, the awards of accrued leave and severance pay are upheld.
The Appellant has partly succeeded. The Court orders each party to bear own costs of the Appeal. The Respondents to have costs before the Subordinate Court.
The Chief Magistrate fell into an error of law in awarding compensation without making a finding that there was unfair termination of employment.
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.
In terms of section 47(5) of the Employment Act, the Respondents should have at the first instance met the low threshold burden of showing that an unfair termination of employment occurred, they did not.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moi University v Soga & 22 others (Appeal E010 of 2024) [2024] KEELRC 1387 (KLR)", Case Analysis (2024). Memorandum of Appeal filed 27 March 2024 (Appeal from Siaya CMCC Employment Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1387/eng@2024-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.