[2019] KEELRC 869 (KLR)
The court found that while the Claimant's dismissal was unfair as determined by the Court of Appeal, the circumstances did not justify the maximum compensation of 12 months' salary. Applying the statutory factors under Section 49(4) of the Employment Act, including the circumstances of termination and the Claimant's...
Source-derived case information.
- Citation
- [2019] KEELRC 869 (KLR)
- Parties
- Claimant: Margery Muthoni Ndwiga; Respondent: Daima Savings Co-operative Society Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 17 of 2015
- Procedural Posture
- Employment Cause / Remitted for Determination of Compensation After Appellate Finding of Unfair Dismissal
- Outcome
- Judgment for the Claimant for compensation for unfair dismissal.
- Judges
- AN Makau
- Legal Topics
- Unfair Dismissal, Compensation Assessment, Employment Act Section 45, Employment Act Section 49, Remedies for Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Margery Muthoni Ndwiga
Claimant
Daima Savings Co-operative Society Ltd
Respondent
Procedural Posture
Employment Cause / Remitted for Determination of Compensation After Appellate Finding of Unfair Dismissal
Legal Issues
- 1 Whether the Claimant is entitled to compensation for unfair dismissal and the quantum thereof.
- 2 What considerations should guide the court in determining the amount of compensation for unfair dismissal.
Ratio Decidendi
The court found that while the Claimant's dismissal was unfair as determined by the Court of Appeal, the circumstances did not justify the maximum compensation of 12 months' salary. Applying the statutory factors under Section 49(4) of the Employment Act, including the circumstances of termination and the Claimant's conduct, the court determined that 6 months' gross salary was appropriate compensation. The court declined to award damages beyond compensation for unfair dismissal, as sought in the Claimant's prayers, and awarded costs of the suit to the Claimant.
Court Disposition
Judgment for the Claimant for compensation for unfair dismissal.
Orders
- The Claimant is awarded compensation fixed at 6 months' gross salary, totaling Kshs. 152,244/-.
- The Respondent shall pay the costs of the suit.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NYERI
CAUSE NO. 17 OF 2015
MARGERY MUTHONI NDWIGA...........................................CLAIMANT
VERSUS
DAIMA SAVINGS CO-OPERATIVE SOCIETY LTD......RESPONDENT
JUDGMENT
1. The Claimant herein was a successful Appellant in Civil Appeal No. 7 of 2017 where the Learned Judges of Appeal reversed the Employment and Labour Court and found her dismissal to be unfair within the meaning of Section 45. The file was remitted to the Employment & Labour Relations Court at Nyeri to determine the compensation for unfair dismissal.
2. The Claimant herein having proved her dismissal was unfair would be entitled to compensation but not for the damages sought under paragraph 4 of her prayers. She had risen to the position of general clerk earning Kshs. 25,374/-. Her dismissal was after a hearing where the Respondent asserts she was not able to exonerate herself. Under Section 49(1) of the Employment Act, the employee who is unfairly dismissed is entitled to compensation in terms of Section 49(4) as read with Section 50. The considerations a Court has to take into account while determining compensation or reinstatement of an employee are any or all of the following:- (a) the wishes of the employee; (b) the circumstances in which the termination took place, including the extent, if any, to which the employee caused or contributed to the termination; and (c) the practicability of recommending reinstatement or re-engagement; (d) the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances; (e) the employee’s length of service with the employer; (f) the reasonable expectation of the employee as to the length of time for which his employment with that employer might have continued but for the termination; (g) the opportunities available to the employee for securing comparable or suitable employment with another employer; (h) the value of any severance payable by law; (i) the right to press claims or any unpaid wages, expenses or other claims owing to the employee; (j) any expenses reasonably incurred by the employee as a consequence of the termination; (k) any conduct of the employee which to any extent caused or contributed to the termination; (l) any failure by the employee to reasonably mitigate the losses attributable to the unjustified termination; and (m) any compensation, including ex gratia payment, in respect of termination of employment paid by the employer and received by the employee.
3. As noted in the preceding part, part of which is underlined for emphasis, the dismissal of the Claimant and the circumstances surrounding the same do not warrant the maximum compensation which is set at 12 months by law. In the court’s determination, the Claimant is therefore entitled to 6 months compensation on that basis. In the final premises the court enters judgment for the Claimant for compensation fixed at 6 months gross salary which is Kshs. 152,244/- plus costs of the suit.
It is so ordered.
Dated and delivered at Nyeri this 24th day of September 2019
Nzioki wa Makau
JUDGE
I certify that this is a true copy of the Original
Deputy Registrar