Central Electricals International Limited v Abillah (Appeal E215 of 2023) [2024] KEELRC 2579 (KLR)
The bottom line
#Kenya's Employment Court capped a house allowance claim at three years but upheld maximum compensation for unfair dismissal of a long-serving employee.
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 awarding house allowance when the same was not proved and the claim was time barred
- 2.Whether the trial court erred in awarding 12 months' salary as compensation for unfair termination, above or at the statutory maximum without justification
- 3.Whether the trial court failed to consider final dues already paid to the Claimant in computing the award
- 4.Whether the trial court failed to consider the facts and evidence on record
Key legal issues
#Whether the trial court erred in awarding 12 months' salary as compensation for unfair termination
The award was proper; the trial court justified the maximum compensation on sound judicial principles including the Respondent's over 20 years of service and the difficulty of securing alternative employment, so the appellate court declined to interfere
The court noted that interference with discretionary awards requires demonstration of a misdirection leading to a wrong decision. The trial court had expressly taken judicial notice of acute unemployment and difficulty in securing another job. Coupled with the duration of service exceeding 20 years and the nature of the termination, the maximum award under section 49(4) of the Employment Act was justified and not capricious or whimsical.
Whether the award of house allowance for 16 years was sustainable
The ground succeeded in part; the house allowance claim was capped at three years before filing of suit, in line with section 90 of the Employment Act, and was awarded at Kshs 186,300/=
The court accepted that where no written contract or itemized pay slip showed consolidation, the burden lay on the employer to prove payment of house allowance under sections 31 and 74 of the Employment Act. However, the claim was contractual and governed by the three-year limitation in section 90. The Respondent should not have waited until termination to raise the issue; even as a continuing injury, the claim should have been brought within twelve months of cessation.
Whether the termination issue could be raised on appeal through submissions
No; unfairness of termination was not among the grounds of appeal and the court declined to consider submissions on it
The court observed that the grounds of appeal concerned the awards made by the trial court, not the finding of unfair termination. The appellant's contention that the Respondent voluntarily left employment was raised only in submissions and was therefore outside the scope of the appeal. Further, the appellant failed to prove reasonable grounds, having made no effort to call the Respondent back to work or take disciplinary action.
Legal principles established
#- An appellate court will not interfere with the trial court's discretion on quantum unless satisfied the judge misdirected himself in some matter and arrived at a wrong decision, or the decision is clearly wrong and occasions injustice
- An award of the maximum 12 months' pay for unfair termination must be based on sound judicial principles and justified by the trial court
- Claims arising out of employment or contract of employment are actionable within three years under section 90 of the Employment Act
- In an appeal from a trial court, the appellate court may re-evaluate the evidence but must make due allowance for not having seen or heard the witnesses
Court orders
#- 1.House allowance capped at three years and awarded at Kshs 186,300/=
- 2.Each party to bear their own costs of the Appeal
- 3.It is so ordered
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Subordinate Court (Senior Principal Magistrate)
- not stated in judgment
- Jurisdiction invoked
- Appellate jurisdiction over appeals from the trial subordinate court (Employment and Labour Relations Court)
Relief refused
#Setting aside of the entire trial court judgment including the 12 months' compensation for unfair termination
The trial court justified the maximum award on sound principles (long service of over 20 years, difficulty of securing another job), so the appellate court would not interfere with that discretion
Appellant's claim that house allowance award should fail entirely
Ground succeeded only in part; house allowance limited to three years under section 90 of the Employment Act rather than removed
Costs
Each party shall bear their own costs of this 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.
In the upshot the Appeal partially succeeds as follows; _ a. House Allowance for three years…Kshs 186,300/=
The appeal being partially successful, each party shall bear their own costs of this Appeal.
In this regard the claim for housing allowance will be capped to three years in line with section 90 of the Employment Act. This ground of appeal succeeds to this extent.
this court is convinced that it should not interfere with the discretion of the lower court on the quantum of compensation for unfair termination awarded by the trial Court.
It was also common ground that the Respondent had been in employment from 1998 to 2019 which was roughly 21 years without any written contract. This in the Court’s view amounted to unfair labour practice on the part of the Appellant.
Issues in the judgment
#The judgment does not state the names of the parties or the trial court case number; the appeal is identified only by its Memorandum of Appeal date and the parties are referred to throughout as Appellant and Respondent
Ground of appeal alleges 13 months' compensation above the 12-month statutory limit, but the trial court actually awarded 12 months; the court notes this discrepancy
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Central Electricals International Limited v Abillah (Appeal E215 of 2023) [2024] KEELRC 2579 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 26th October, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2579/eng@2024-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.