Eyasu t/a Eyasu Garage v Akuno (Appeal E160 of 2022) [2024] KEELRC 2158 (KLR)
The bottom line
#Kenya's Employment Court upheld an unfair termination award, but confirmed employers only owe leave pay when employees actually worked.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Trial Court erred in finding that the Respondent's termination was unfair and unlawful
- 2.Whether the Respondent deserted duty rather than being terminated by the Appellant
- 3.Whether the Respondent, though a deserter, was paid his terminal dues
- 4.Whether the award of annual leave pay was in error
- 5.Whether the award of house allowance was in error
- 6.Whether the award of notice and compensation was unfounded
- 7.Whether the Judgment was unfair, unjust and excessive
Key legal issues
#Validity and fairness of termination
Termination was instigated by the Appellant, without valid reason and without fair procedure
The Respondent reported for duty but was unpaid; both parties appeared before the Chief on 10th May 2018, where the Appellant paid Kshs. 50,000 but never raised desertion. The employer thus failed to institute disciplinary proceedings if desertion was alleged. Procedure breached Sections 41 and 45 of the Employment Act.
Entitlement to annual leave pay
The award of annual leave pay of Kshs. 164,791 was unjustified and is set aside
The Respondent was injured in South Sudan, did not actively drive from January to May 2018, and ordinarily made only about 6 trips annually. He was effectively resting while drawing monthly salary, so leave pay was not merited; the Trial Court gave inadequate weight to the colleague Simon's evidence.
Entitlement to house allowance
The award of house allowance at 15% of basic salary was correct
The employer admitted it gave mileage, not a house. It did not establish that salary included house allowance. Mileage cannot substitute for house allowance under Section 31 of the Employment Act, and the 15% formula was never challenged.
Quantum of notice and compensation
Compensation of 3 months' salary and 1 month's notice pay was lawful and modest
The Court found the awards not legally faulty and the compensatory award modest, rejecting the grounds attacking them.
Legal principles established
#- An employer who alleges that an employee deserted duty has an obligation in law to institute a disciplinary process against the employee
- Termination without valid reason and without procedure conforming to Sections 41 and 45 of the Employment Act is unfair
- Mileage allowance is not a substitute for house allowance under Section 31 of the Employment Act
- Annual leave pay is not merited where an employee was not doing meaningful work and was effectively resting while drawing salary
Court orders
#- 1.Grounds 4 and 7 of the Memorandum of Appeal are sustained, and the award of annual leave pay at Kshs. 164,791 is set aside
- 2.No order on the costs of the Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Trial Court (Employment and Labour Relations Court subordinate court; not specified in judgment)
- Not stated
- Jurisdiction invoked
- Appellate jurisdiction over appeal from the Trial Court (Memorandum of Appeal dated 22nd September 2022); specific constitutional provision not cited
Relief refused
#Grounds 1, 2, 3, 5 and 6 of the Memorandum of Appeal challenging the findings on unfair termination, desertion, notice pay, compensation and house allowance
The Trial Court did not err; termination lacked valid reason and procedure; house allowance award was grounded in Section 31 of the Employment Act; the compensatory award was modest
Costs of the Appeal
The Court made no order on costs
Costs
No order on the 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.
The Trial Court correctly concluded that the Appellant had an obligation in law, to institute disciplinary process against the Respondent, if it was true that the Respondent had deserted.
Procedure was not in conformity with the standards of fairness prescribed under Sections 41 and 45 of the Employment Act.
Mileage allowance could never be a substitute for house allowance.
Award of Kshs. 164,791 in annual leave is set aside.
Grounds 4 and 7 of the Memorandum of Appeal are sustained, and the award of annual leave pay at Kshs. 164,791, set aside.
No order on the costs of the Appeal.
Issues in the judgment
#The judgment does not state the case number of the appeal or the identity/case details of the Trial Court, making full citation impossible from the judgment alone
The name of the Respondent (Claimant before the Trial Court) is not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eyasu t/a Eyasu Garage v Akuno (Appeal E160 of 2022) [2024] KEELRC 2158 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 22nd September 2022 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2158/eng@2024-08-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.