Kenga Equatorial Hotels Limited t/a Mombasa Continental Resort v Wanjiru (Appeal E023 of 2025) [2025] KEELRC 2321 (KLR)
The bottom line
#Kenya's Employment Court threw out most of a hotel worker's awards, confirming only unpaid salary was due because he had resigned.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of magistrates' courts over trade disputes
The trial court lacked jurisdiction because the claim was premised on a CBA, constituting a trade dispute reserved for the ELRC's original jurisdiction.
Under Legal Notice No. 6024 of 2018, magistrates' courts hear only employment disputes excluding trade disputes under the Labour Relations Act. A CBA-based claim is a trade dispute under section 2 of that Act. The respondent paid agency fees to KUDHEIHA and was covered by the CBA, so his claim was a trade dispute. The trial court thus proceeded without jurisdiction, except for unpaid salary for work done.
Notice pay and compensation for unfair termination where employee resigned
The award of notice pay and compensation was made in error as the respondent resigned and did not plead unfair termination.
The respondent pleaded resignation through notice dated 19 July 2014, effective 19 August 2014, and never pleaded unlawful or unfair termination. Notice pay and compensation under sections 35 and 49 of the Employment Act can only be assessed on a foundation of unfair termination under section 45, as held in Kenya Ports Authority v Makau Munyao. With resignation, these awards do not arise.
Time-bar of annual leave claim
The claim for leave accrued in 2013/2014, filed on 3 August 2017, was time-barred under section 90 of the Employment Act.
Under section 28(4) of the Act, leave accrues for only 18 months unless approved for accumulation. Accrued leave is a continuing injury claimable within 12 months of cessation, as held in The German School Society v Ohany. A claim filed three years after the leave accrued is time-barred under section 90.
Unpaid salary for work done
Salary for June to August 2014, KSh. 75,096.15, was due for work done while employment subsisted, whether on suspension or not.
Under section 18 of the Employment Act, pay for work done is due regardless of the reason termination or resignation occurred. Even during suspension, while employment subsisted the respondent's due salary should be paid. This head of claim was justified and survives despite the trial court's lack of jurisdiction.
Acting allowance and allied CBA benefits
Claims for acting allowance, night allowance, service charge and salary arrears for an acting position failed for lack of written appointment and time-bar.
Acting allowance accrues only with a formal appointment by the employer. The only document produced was the contract dated 2 August 2013 for the position of accounts assistant; there was no letter of appointment or review as required by section 10(5) of the Employment Act. Further, monthly accruing benefits had to be claimed within the limitation period under section 90.
Legal principles established
#- A claim premised on a CBA is a trade dispute under the Labour Relations Act, outside magistrates' court jurisdiction under Legal Notice No. 6024 of 2018
- Awards of notice pay and compensation under sections 35 and 49 of the Employment Act can only be premised on a claim for unfair termination under section 45
- Accrued leave is a continuing injury claimable within 12 months from cessation of employment
- Salary for work done is due notwithstanding termination, resignation or suspension
- Costs in employment disputes are discretionary, must be justified, and do not follow the event
Court orders
#- 1.Setting aside the trial court's awards of notice pay, 8 months' compensation for unfair termination, and unremitted NSSF dues
- 2.Upholding payment of due unpaid salaries for work done at KSh. 75,096.15
- 3.Each party to bear its own costs for the appeal and the lower court proceedings
- On appeal from
- Magistrates' Court (ELRC) Mombasa
- CMELRC No. 634 of 2017
- Jurisdiction invoked
- First appeal under the Employment and Labour Relations Court jurisdiction; Legal Notice No. 6024 of 2018 conferring limited jurisdiction on magistrates' courts in employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Edward Mutua M’ Mwithiga v Charles Kimaita M’ Mwithimbu & another [2019] KEELC 3407 (KLR)[2019] KEELC 3407 (KLR)15 May 2019applied
- Betha Ndumba M’Twaruchiu v Wachira Wambugu (Environment & Land Case 63 of 2000) [2019] KEELC 3698 (KLR)[2019] KEELC 3698 (KLR)25 Apr 2019applied
Cite this brief
#Cite this brief
Caselaw, "Kenga Equatorial Hotels Limited t/a Mombasa Continental Resort v Wanjiru (Appeal E023 of 2025) [2025] KEELRC 2321 (KLR)", Case Analysis (2025). Appeal from Mombasa CMELRC No. 634 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2321/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.