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Kuria v Kenya Broadcasting Corporation (Civil Appeal 382 of 2018) [2026] KECA 971 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 971 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 382 of 2018 F Tuiyott, P Nyamweya & WK Korir, JJA May 15, 2026 Between John Ng'ang'a Kuria Appellant and Kenya Broadcasting Corporation Respondent (Being an appeal from the Judgment and Decree of the Employment and Labour Relations Court at Nairobi (M. Mbaru J.) delivered on 18th December 2017 in Nairobi ELRC Cause No. 801 of 2013 Formerly Nairobi HCCC No. 1018 of 2016) Judgment 1.On 18th December 2017, the Employment and Labour Relations Court (the ELRC) at Nairobi (M. Mbaru J.) delivered a judgment in Nairobi ELRC Cause No. 801 of 2013 awarding John Ng’ang’a Kuria, the appellant herein, his leave days dues of Kshs 138,640.00/-. All his other claims for payment of compensation and damages by Kenya Broadcasting Corporation, (the respondent herein) were dismissed. The ELRC also allowed a counterclaim by the respondent herein for the payment of Kshs 52,622.80/-, and ordered that the dues owing to the appellant from the respondent would be paid less the amount in the counterclaim. 2.This award was given pursuant to a consent dated 15th November 2016 entered into in the ELRC by the appellant and the respondent, allowing the prayer by the appellant that his dismissal and/or retirement from the service of the respondent was unlawful and contrary to the procedures and provisions of the Kenya Broadcasting Corporation Act, the Kenya Broadcasting Corporation terms and conditions of service, and contrary to natural justice. The parties further consented that the ELRC would only deal with the issue of quantum of damages based on the documents filed by the parties. 3.Therefore, this appeal is essentially on the issue of quantum only, liability having been admitted by the respondent for unlawful termination of employment. The appellant was in this respect employed by the respondent as the Manager Technical Services until 1st November, 2005 when his employment was terminated by the respondent’s Managing Director. The appellant subsequently filed a suit against the respondent, which was initially filed in the High Court of Kenya at Nairobi as HCCC No. 1018 of 2006, before being transferred to the ELRC at Nairobi on 16th May 2013, and assigned a new case number, being ELRC Cause Number 801 of 2013. A judgment was delivered on the suit on 28th September 2015, by Nzioki wa Makau J. which was later vacated upon an application for its review and setting aside, and a re-hearing ordered. The re- hearing was conducted by Mbaru J. who delivered the impugned judgment on 18th December 2017. 4.The claim by the appellant as regards quantum in his amended plaint filed in the ELRC on 3rd July 2013 was for payment of Kshs 73,719,706.60/-, being his lost earnings which he particularised to include the salary and allowances he would have earned until his proposed retirement at the age 55, or in the alternative such sum as the Court shall direct to be payable; loss of 80 days leave; general damages for pain, suffering and mental anguish; exemplary damages; and damages for loss of promotional opportunity. The respondent on its part sought judgment against the appellant for Kshs 62,622.80 in its amended defence and counterclaim dated 29th July 2008, being the appellant’s liability to the respondent as at 1st November 2005 of Kshs 302,622.80/-, less the appellant’s 3 months’ salary in lieu of notice and transport allowance of 2 months’ salary on retirement, totalling Kshs 240,000/=. The respondent further pleaded that the appellant was paid terminal dues as provided in its regulations. The appellant denied these assertions in his reply to the defence and defence to counterclaim dated 31st October 2006 as amended on 6th May 2008. 5.After considering the parties’ submissions on the issue of quantum, Mbaru J. held that there was no effort on the part of the appellant to make any linkage as to why the award of Kshs 73,719,706.60 should be made, and as to why the Court should direct any other assessment. Further, that despite the parties drawing a consent that there was wrongful termination of employment, that on its own and without the justification as to why there should be payment of due salaries up and until the date of retirement at 60 years did not warrant payment of the claimed amounts, and the burden of proving that the claimed amounts of the anticipated earnings until retirement age or that such damages as due should be assessed by the Court lay with the appellant. Furthermore, that having been paid a salary for 3 months in lieu of notice, his claim for damages including exemplary damages, had no basis. 6.On the claim for due leave days, the trial Judge found that the respondent had not attached any record to demonstrate such leave was taken or was paid in lieu thereof and such right did not abate with termination of employment, and granted the claim for 80 days leave at Kshs 1,733.00/- per day. Lastly, that the appellant failed to address the counter claim by the respondent in his written submissions. Accordingly, judgment was entered for the appellant for leave days due at Kshs 138,640.00/- and his other claims were dismissed, and the respondent’s counter claim was allowed for the payment of Kshs 52,622.80/-. The learned Judge ordered that the dues owing to the claimant shall be paid less amount in counter claim and that each party shall bear own costs. 7.The appellant was dissatisfied with the decision of the ELRC, and lodged an appeal in this Court in which he has raised twelve (12) grounds of Appeal in his Memorandum of Appeal dated 8th October 2018. The grounds, many of which were largely argumentative, challenged the findings of the learned trial Judge for failure to properly consider evidence, pleadings, and legal principles on quantum; misdirection regarding the burden of proof, and for making findings that were not supported by the evidence. The appellant accordingly seeks to have the judgment of the ELRC dismissing his claim for Kshs 73,719,706.60/- set aside and substituted with a judgment allowing his claim for lost earning and lost pension from December 2005 to May 2021. In the alternative, that the case to be referred back to the ELRC for hearing before a different Judge. 8.We heard the appeal on this Court’s virtual platform on 19th May 2025. Learned counsel Ms. Ameka Margaret appeared for the appellant and highlighted written submissions dated 28th March 2025. Learned counsel Mr. Alfred Ndambiri, holding brief for learned counsel Mr. Thongori, appeared for the respondent. Ms. Ameka placed reliance on written submissions dated 28th March 2025, while Mr. Ndambiri made oral submissions. 9.In determining the appeal, we are mindful that the duty of this Court as a first appeal Court, which was reiterated and set out in Selle and Another vs Associated Motor Boat Co. Ltd & Others (1968) EA 123. Our duty is to reconsider the evidence, evaluate it, and draw conclusion of facts and law, and we will only depart from the findings by the trial Court if they were not based on evidence on record; where the said Court is shown to have acted on the wrong principles of law as was held in Jabane vs Olenja (1986) KLR 661, or where its discretion was exercised injudiciously as was held in Mbogo & Another vs Shah (1968) EA 93. 10.In addition, as this is mainly an appeal against quantum of damages, we are also alive to the principles pronounced by this Court in Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another vs Lubia & Another (No 2) [1985] KECA 137 (KLR) as follows: -The principles to be observed by an appellate Court in deciding whether it is justified in disturbing the quantum of damages awarded by the trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages, took into account an irrelevant factor or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage”. 11.Ms Ameka’s submissions on the trial Court’s failure to consider the evidence, pleadings, and legal principles were as follows: that the order for a rehearing of the suit did not invalidate previously filed pleadings and documents; the trial Judge had a duty to evaluate the said pleadings and documents, and instead held that the documents needed to be recalled, leading to a miscarriage of justice; the trial court was obligated to assess the evidence comprehensively since the respondent admitted wrongful termination and was to give the appropriate remedies. The appellant asserted that the trial Judge did not consider the pleadings, detailed witness statement, and various lists of documents, which justified the Kshs. 73,719,706.60 claim despite the appellant's evidence being unchallenged, and the finding that that no evidence was adduced was in error. Reliance was placed on Rule 21 of the Employment and Labour Relations Court Procedure Rules 2016 for the submission that the court can determine a case solely on pleadings, affidavits, documents, and submissions, even without oral hearings, especially when parties consent to it. 12.Regarding the burden of proof, counsel urged that with the respondent's admission of liability, the evidentiary burden shifted to determining damages, which should have been assessed based on the unchallenged evidence. Further, that after dismissing the appellant’s claim for Kshs. 73,719,706.60, the trial Judge used the same "disregarded evidence" to make awards for leave days, while making no finding on the pension claim and offering no justification for this omission. According to counsel, the respondent’s concession that the termination was unlawful supported the appellant's claim for lost earnings and pension from December 2005 to May 2021. 13.Reliance was placed on the decisions in the case of D.K. Marete vs Teachers Service Commission (2020) eKLR for the position that unfair termination warranted compensation and claims for extended benefits and additional damages required substantial justification; and the case of Kenya Ports Authority vs Silas Obengele (2008) eKLR where compensation for lost earnings up to retirement age was upheld arising from a wrongful dismissal without due process. Counsel asserted that the appellant had a right to claim salary and pension until retirement because his employment was governed by the Kenya Broadcasting Corporation Act (Cap 221, Laws of Kenya) and the Kenya Broadcasting Corporation Salaries, Terms, and Conditions of Service (1989), which guaranteed a pensionable career until retirement and entitlement to salary and allowances for the entire period of service, and he was denied these benefits due to unlawful dismissal. 14.Further, that the appellant had an unblemished record, demonstrating diligence and exemplary performance, and the termination was not due to incompetence, misconduct, or redundancy, but rather the Managing Director's discretion. Therefore, that the employer’s arbitrary, malicious and oppressive conduct warranted an award of exemplary damages. Reliance was placed on the holding in the case of Obongo vs Municipal Council of Kisumu (1971) EA 91 that exemplary damages are appropriate when an employer acts with oppression or disregard for due process. While acknowledging that employees generally have a duty to mitigate losses by seeking alternative employment, counsel argued that in this case, mitigation was not applicable due to specific circumstances which included his advanced career age which limited job opportunities, and the respondent’s unlawful actions tarnished the appellant’s reputation, making re- employment difficult and complicated. 15.The cases of Kenya Ports Authority vs Silas Obengele (supra) and Godfrey Julius Ndumba Mbogori & another vs Nairobi City County (2018) eKLR were cited for the holding that mitigation is not applicable when an employee’s re-employment prospects are significantly affected by wrongful dismissal. Therefore, the appellant should not be penalized for failing to secure alternative employment. Lastly, that the appellant’s challenge to the respondent’s counterclaim was ignored. 16.On his part, Mr. Ndambiri submitted that there was no justification for any unique or special treatment of the appellant, and having considered that there was unlawful termination the trial court considered the appellant’s entitlement based on the evidence placed on record by all the parties, and the fact that the appellant had already been paid his entitlements after the termination in accordance with the applicable law and procedures. 17.The main issue in this appeal, as conceded by Ms. Ameka during the hearing, is whether anticipatory benefits sought by the appellant can be granted. If we do find that such an award was merited, we shall then consider the secondary issue of quantum and the basis for such quantum. As regards the issue of anticipatory benefits, the Supreme Court of Kenya, in the recent decision in Ngokonyo & 2 others vs Telkom Kenya Limited [2025] KESC 75 (KLR) noted that courts have not been unanimous on the issue of anticipatory salary. After examining various decisions of the High Court and of this Court including D.K. Njagi Marete vs Teachers Service Commission (supra) and Kenya Ports Authority vs Silas Obengele (supra), the Supreme Court settled the applicable law as follows:“58.Earlier in the judgment, we observed that there are conflicting judicial authorities, especially those decided earlier by High Court under the repealed Employment Act. We also noted that the repealed Employment had no provision for anticipatory remuneration. While there exist outlier cases, like Peter J Ndungu (supra) and Nyamodi (supra) where the courts a warded anticipatory salaries, the weight of authority to the contrary affirms that such claims are not available in law and are inconsistent with the principles governing termination of employment. Apart from failing to provide the legal basis for the award of anticipatory salaries, the former decisions were decided by the High Court. Decisions from the Court of Appeal under the repealed Employment Act, such as the Obengele Case, rejected claims for anticipatory salaries, holding that such claims had no basis in law. Consequently, by virtue of the doctrine of stare decisis, the decisions of the Court of Appeal rendered under the repealed Employment Act remained binding on the High Court.” 18.Specifically, on the issue of whether anticipatory salaries and allowances could be awarded until retirement age, the Supreme Court held as follows:“60.The common thinking and modern judicial consensus has steadily moved away from allowing claims for anticipatory salaries or future salary earnings up to the date of retirement, considering that such awards not only amount to unjust enrichment, but offend public policy, and contradict the principle that contracts of employment are by their nature terminable. Employees are paid for services actually rendered. Once employment is terminated, lawfully or unlawfully, including through retirement in the public interest, the employment relationship comes to an end. Any form of payment beyond that date, be they anticipatory salaries or allowances would lack any basis under the law. Damages for wrongful or unlawful dismissal are confined to what is contractually or statutorily provided for, such as pay in lieu of notice, accrued benefits, and pension entitlements. In other words, the court cannot grant anticipatory salaries and allowances for a period the employee did not render any service to the employer. Only damages for unfair termination can be awarded where the court is satisfied that the termination was unlawful. Even then, the remedies must be proportionate to the injury suffered and cannot extend to speculative or prospective benefits.61.The principle of mitigation of loss further obligates employees to take reasonable steps to find alternative employment, rather than sit back and expect a windfall. Damages in contract law aim to place the injured party in the position they would have been had the contract been lawfully performed. This principle is today codified in Section 49(4)(g) of the Employment Act, 2007, that in considering the remedies for wrongful dismissal and unfair termination, one of the factors to be taken into account is “the employee’s opportunity of securing comparable or suitable employment with another employer.” Even where an unlawfully dismissed employee cannot reasonably mitigate loss because of either incapacity or as a result of a contract in restraint of trade limiting the employee’s ability to secure another job, all the court can do is to adjust damages it would have awarded upward to reflect actual loss, not as anticipatory salary but as compensatory damages.62.There cannot be legitimate expectation merely on the basis that the term of service is permanent and pensionable. The law does not protect every expectation save only those which are legitimate. In addition, clear statutory provisions will override any contrary expectation, however founded. See Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) and also Tunoi & another v Judicial Service Commission & another, [2016] KECA 530 (KLR).” 19.The Supreme Court accordingly concluded as follows on the issue:“iii.Claims for anticipatory salaries or future salary earnings lack a statutory foundation under both the repealed Employment Act (Cap 226) and the current Employment Act, 2007.iv.The general measure of damages does not extend to salaries for the unexpired period to retirement age. Remedies are generally confined to notice pay, payment in lieu of notice, and contractual terminal benefits.v.Awards of arrears of salary and benefits may be made in exceptional cases where the termination is declared unlawful and a nullity, effectively treating the employee as if still in service.vi.An employee has a duty to mitigate any loss that may arise from unlawful termination of employment.” 20.We are bound by the decision of the Supreme Court, and we accordingly find that the appellant cannot claim any anticipatory benefits in the form of salary and other benefits he would have earned until his retirement as claimed in his Amended Plaint dated 3rd July 2018. In light of this finding, the secondary issues raised by the appellant as regards the proof of the said anticipatory benefits fall by the wayside. 21.In addition, the appellant did not dispute the finding by the trial Judge that:“20.It is common ground that termination of employment took effect on 1st November, 2005. At the time the applicable law was the Employment Act Cap 226, now repealed. The concept of unfair termination of employment and the remedies set out under section 49 of the Employment Act, 2007 cannot thus apply in this case as such a claim for unfair termination and the due remedies only arise with the new law taking effect from 2nd June, 2008.” 22.Under the repealed Employment Act, the remedy available for unlawful termination was the payment of salary for the period of the notice of termination that was required to be given under the employment contract. We accordingly have no ground to interfere with the findings by the trial Judge that the appellant’s claim for payment of lost earnings of Kshs 73,719,706.60 and exemplary damage had no basis. 23.Lastly, counsel for the appellant submitted that the challenge to the respondent’s counterclaim was ignored. We have perused the Reply to Amended Defence and Defence to Counterclaim dated 6th May 2008 filed by the appellant in the trial Court, and note that it contained bare denials to the claims in the counterclaim. In addition, the submissions filed by the appellant’s advocates on record dated December 2014 and the reply to the respondent’s submissions dated 13th March 2017 did not make any reference to, or expound on the Counterclaim. We therefore have no basis for interfering with the findings by the trial Judge that the appellant failed to address the counter-claim by the respondent and the same was not challenged and the payment of Kshs. 52,622.80 was payable by the appellant to the respondent, save to clarify that there was indeed on record a Reply to Amended Defence and Defence to Counterclaim filed by the appellant. 24.This appeal is accordingly found to be without merit, and is hereby dismissed with no order as to costs, given the circumstances giving rise to the appeal. 25.It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY, 2026F. TUIYOTT...................................JUDGE OF APPEALP. NYAMWEYA...................................JUDGE OF APPEALW. KORIR...................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR