Dakawou Transport Limited v Kithuku (Appeal E060 of 2024) [2025] KEELRC 1088 (KLR)
The bottom line
#A Kenyan mechanic won his unfair termination case, but his payout was cut because the employer's conduct wasn't deemed malicious, and he couldn't prove overtime.
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 respondent resigned from employment or was unfairly terminated
- 2.Whether the letter of resignation was properly proved
- 3.Whether the trial court's awards of notice pay, 12 months' compensation, leave, public holidays, overtime and house allowance were justified
Key legal issues
#Whether resignation was proved
The alleged letter of resignation was not produced or proved, so the respondent's account stands: unfair termination
The trial court stood down the appellant's witness to furnish the original resignation letter but the appellant closed its case without producing it, leaving the authenticity of the letter unresolved and unaddressed in the trial judgment. In a first appeal, the court found the respondent's facts proved: he left after being directed to leave for poor performance, without the procedure in Sections 41, 43 and 45.
Adequacy of 12 months' compensation award
Reduced to 3 months (Ksh.81,000)
Although within the trial court's discretion, the maximum award of 12 months under Section 49 requires judicial justification and is reserved for callous, malicious or bad-faith employer conduct. The trial court gave no rationale, the respondent was paid terminal dues immediately and had served only 3 years, justifying interference and an award of 3 months.
Leave pay
Award of 33 leave days at Ksh.29,700 justified
The employer bore the statutory duty under Sections 10(6) and (7) to keep records of leave taken; none were filed. Section 28(4) caps accumulation at 18 months, entitling the respondent to 33 leave days.
Public holidays, overtime and house allowance claims
Public holidays award upheld; overtime and house allowance declined
The employer filed no worksheets to disprove the particularized public holiday days worked, so the claim of Ksh.31,153.80 stood. Overtime for 8 am to 8 pm daily was implausible and the consolidated wage exceeded the minimum wage plus house allowance. Such claims are continuing injuries under Section 89, limited to 12 months.
Legal principles established
#- A resignation is a valid mode of terminating employment, subject to notice or payment in lieu
- Where an employer alleges poor performance, the burden is on it to prove measures taken to support the employee to improve
- 12 months' compensation is reserved for callous, malicious or bad faith employer conduct
- Accumulation of leave days is capped at 18 months
Court orders
#- 1.Employment terminated unfairly declared
- 2.Compensation Ksh.81,000 (3 months)
- 3.Notice pay Ksh.27,000
- 4.Leave pay Ksh.29,700
- 5.Certificate of service
- 6.Costs of proceedings before the trial court as awarded to the respondent
- 7.For the appeal, each party bears its costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (ELRC), Mombasa
- CMELRC No. E393 of 2021
- Jurisdiction invoked
- First appellate jurisdiction over Mombasa CMELRC No. E393 of 2021
Relief refused
#12 months' compensation as awarded by trial court
Trial court gave no rationale for maximum award; 3 months appropriate given 3 years' service
Overtime pay
Wage of Ksh.27,000 exceeded minimum wage; claim also barred as continuing injury
House allowance
Consolidated wage exceeded minimum wage plus house allowance; claim would amount to unjust enrichment
Interest on the award
Claim not liquidated
Costs
Costs of proceedings before the trial court as awarded to the respondent; for the appeal, each party bears its own costs.
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.
Accordingly, the judgment in Mombasa CMELRC E393 of 2021 is hereby reviewed in the following terms;
Compensation Ksh.81,000;
For the appeal, each party bears its costs.
In this case, the mandatory provisions of Sections 41, 43 and 45 of the Employment Act were not adhered to. This resulted in unfair termination of employment.
The award of 12 months compensation is reserved for instances where the employer's conduct has been callous, actuated by ulterior motives, malicious or in bad faith.
Issues in the judgment
#Court Assistant listed but no counsel noted; minor formatting artifacts (e.g. 'ofi', 'oficer') suggest OCR errors
Order (g) says 'each party bears its costs' while paragraph 32 treats costs as due to the respondent for the termination finding; the appeal costs order appears to mean each party bears own costs of the appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dakawou Transport Limited v Kithuku (Appeal E060 of 2024) [2025] KEELRC 1088 (KLR)", Case Analysis (2025). Mombasa CMELRC No. E393 of 2021 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1088/eng@2025-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.