Whether the Trial Court erred in not awarding the Appellant for loss of employment
21.The Court of Appeal in Selle & Another v Associated Motor Boat Co Ltd  EA 123 set the guiding principle in dealing with a first appeal as follows: -
22.Further, in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates  eKLR, while handling a first appeal from the High Court, the Court of Appeal held that:
23.The role of this Court as a first Appellate Court in this matter, is to re-evaluate, re-assess and re-analyse the evidence on record and determine whether the conclusions reached by the learned Trial Court are to stand or not.
24.The Appellant sought to be awarded for loss of employment/compensatory damages on the premise that his dismissal from the service of the Respondent did not adhere to due process.
25.In the judgment by the trial court, the court premised its decision on the contract between the Respondent and Kenya Power and Lighting Company which was for a period of three months. It returned that the contract having terminated on 31st March, 2020, the Respondent had valid reason to terminate the appellant.
26.There are two contracts at play in this matter. One between the Respondent and the Appellant, and another between the Respondent and KPLC, which is not a party to this suit.
27.The Contract between the Appellant and the Respondent is dated 2/12/2019 and which was to be valid until 2/12/2020. This contract was instead terminated on 31st March, 2020, premised on the termination of the Respondent’s contract by KLPC where the Appellant was assigned as a security guard.
28.It is this termination that the Appellant deems unfair and for which he claims compensatory damages for loss of employment.
29.The Appellant’s contract carried a clause that tied his service with the Respondent to the contract between KLPC and the Respondent and which expressly provided that should KPLC terminate the contract with the Respondent, the Appellant’s contract will equally automatically terminate.
30.The contract between KPLC and the Respondent was for a period of three months and was entered into on 13th February, 2020. The Appellant’s contract with the Respondent was already in force as early as 2/12/2019, and it cannot thus be said that the Appellant was hired solely for purposes of the Respondent’s contract with the KPLC.
31.Further, clause 9.3 of the Appellant’s contract with the Respondent and which formed the basis for the decision of the trial court states thus:
32.This contract was entered into in 2019, while the Respondent’s contract with KLPC was entered into in February, 2020. This thus confirms that clause 9.3 of the Appellant’s contract with the Respondent was not in any way related to the Respondent’s contract with KPLC. Moreover, if the Respondents contract with KPLC expressly carried a term of three months, why then was the Appellant given a one-year contract?
33.The Supreme Court in Kenfreight (EA) Limited v Benson K. Nguti  eKLR, held that it is not enough to terminate employment by notice or payment in lieu thereof; termination should be based on valid reasons and fair procedure.
34.The Appellant’s termination was not for reason of misconduct or poor performance and therefore the issue of procedure does not arise. The only issue in this matter is the reason for the termination of the Appellant’s contracts which as explained above, does not hold. In Charles Musungu Odana v Kenya Ports Authority  eKLR the Court stated,
35.Further, in Cooperative Bank of Kenya Limited v Banking Insurance & Finance Union  eKLR it was held that the Court looks into the validity and justifiability of the reasons for termination.
36.I thus conclude by holding that the termination of the Appellant’s contract was not based on valid, fair and justified reasons which then renders the termination unfair.
37.Having found the Appellant’s termination unfair, it follows that he is entitled to compensation for the unfair termination in accordance with Section 49 and 50 of the Employment Act, 2007. (See Benjamin Langwen v National Environment Management Authority  eKLR.)
38.The Appellant had served only 4 months of his contract and had about 9 months still valid under his contract with the Respondent. Section 49 of the Employment Act does not provide for compensation for the remainder of the term of contract, instead, it allows the Court discretion to award up to a maximum of twelve months’ salary depending on the circumstances of each case.
39.In Kenya Ports Authority v Festus Kipkorir Kiprotich  eKLR the Court held that the measures of compensation should be guided by the statutory capping at the time of termination.
40.Considering the period that the Appellant was to continue serving but for the termination, and the opportunities available for him to secure comparable employment, I deem a five months’ salary sufficient compensation for the unfair termination.
41.On whether the Appellant is entitled to leave earned but not paid, the Appellant had only served for four (4) months under the contract subject of this case. He thus cannot have earned leave within the period served.
42.The Trial Court’s decision did not address the issue of leave. I find the claim for leave earned without merit and is dismissed.
43.In whole, the Court makes orders as follows: -i.The award of one month’s salary in lieu of termination notice is upheld.ii.A declaration that the Appellant is entitled to compensatory damages for unfair terminationiii.That the Appellant is awarded 5 months’ salary as compensation for unfair termination at Kshs. 84,215/-iv.The Respondent shall bear the costs of the appeal.