Blow to NMG as court declines to overturn Sh3.8 million awarded to former News Editor Mugumo Munene
Three-judge appellate bench emphasises that the remedy of compensation for unfair termination is separate and distinct from any terminal dues that were due to the respondent as a result of the termination, whether by redundancy or otherwise

Nation Media Group (NMG) has suffered a major blow after the Court of Appeal dismissed an application seeking to overturn by the Employment and Labour Relations Court (ELRC) decision to award former News Editor Mugumo Munene for unfair dismissal.
A three-judge bench comprising Justices Daniel Musinga, Milton Asike-Makandhia and Pauline Nyamweya upheld a ruling by Justice Hellen Wasilwa, which awarded Munene Ksh 3,844,110 after finding that his employment was terminated on March 4, 2016 without a valid reason.
In their ruling, the judges noted that an award equivalent to a number of months’ wages or salary not exceeding 12 months and based on the gross monthly wage or salary of the employee at the time of dismissal is an allowable remedy under section 49 (1) of the Employment Act where termination of a contract of an employee is unjustified.
In addition, they found that the considerations and factors that a court is required to take into account in awarding this remedy come into play in the appeal by the media house, particularly those stated in section 49(4) (a)-(f) of the Employment Act, namely “the wishes of the employee; the circumstances in which the termination
took place, including the extent, if any, to which the employee caused or contributed to the termination; and the practicability of recommending reinstatement or re- engagement; 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.
Others are the common law principle that there should be no order for specific performance in a contract for service except in very exceptional circumstances; the employee’s length of service with the employer; and 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; …”
“Having been removed from work for no valid reason, the respondent was entitled to compensation for the unfair termination. In addition, taking into account the manner and circumstances in which the employment was terminated, not only without reasonable notice, but also in a most cavalier mode, we are of the view that the award of 10 months’ salary compensation was reasonable. It is also notable that the trial judge did clearly state the basis of the award, which was that the respondent was “unfairly terminated without notice”,” Justices Musinga said in their ruling delivered on January 21.
They further emphasised that the remedy of compensation for unfair termination is separate and distinct from any terminal dues that were due to the respondent as a result of the termination, whether by redundancy or otherwise, noting that the terminal dues compensate the employee in view of the service rendered until the date of termination, and are set down by law and the contract of employment. Compensation for unfair termination compensates an employee for wrongful loss of employment, and are mainly at the discretion of the Court, after consideration of the guidelines set down in section 49 of the Employment Act.
“It is also notable that the remedy of compensation for unfair termination was introduced by the Employment Act,” the judges ruled.
“The judgment dated 10th November 2020 by the Employment and Labour Relations Court at Nairobi (H. Wasilwa J.) in ELRC Cause No. 975 of 2016 is therefore upheld in its entirety, and this appeal is accordingly dismissed with costs to the respondent.”
In his application before the ELRC, Munene submitted that he was employed by NMG from December 1999. He rose from the position of correspondent, to reporter, and in October 2007, he was promoted to the position of news editor for the Sunday Nation.
He claimed that throughout his employment he did not have any disciplinary issues nor was he issued with any cautionary or warning letter, and that his rise to news editor was due to his good conduct and excellent performance and ability over the years.
The journalist told the court that on March 4, 2016, he was called into the office of the Editor-in-Chief, who was in the company of the appellant’s Human Resource Director, and was verbally informed that the appellant was in the process of restructuring and as a result, his position as news editor would cease forthwith.
He was then issued a letter on the same day with the heading ‘Redundancy’ and was required to sign it immediately. He requested time to read the letter before signing, but the two senior officers declined and demanded that he signs it and leave the office. He signed the letter and left the office.
On May 26, 2016 in the ELRC where he submitted that when he was promoted to news editor, the media house did not pay him the requisite salary for his position for the period between October 2007 and February 1, 2009 with no explanation.
He also claimed that after he was confirmed, National Media Group stopped paying his house allowance as required by section 31 of the Employment Act as read together with Regulations of Wages (General Order).
Munene said he did not receive prior notice or warning to declare him redundant, nor had the media house’s management served or shared with any of his colleagues or him, any job evaluation or Human Resources Audit that would serve as a basis for reorganising the structure of the appellant.
Additionally, his position as news editor was central and pivotal to the production and running of a publication like the Sunday Nation, thus there was no way the position could be declared redundant. Munene claimed that he was aware that the media house thereafter hired a person who was executing the duties of a news editor of the Sunday Nation, and commissioned an ultra-modern printing press worth over Ksh 2.5 billion in Nairobi
NMG did not dispute that the letter was handed over to Munene on March 4, 2016, the very same day he was required to vacate his office.
“There was also no evidence provided by the appellant of the reorganisation of the operations in the editorial department alluded to in the letter of redundancy, of the particular class of employees affected by the redundancy, and the basis of selection with regard to seniority, skill, ability and reliability as required by section 40 of the Employment Act. In the absence of this crucial evidence, which evidence ought to have come from the appellant under section 43 of the Act, we have no basis for faulting the learned Judge of the ELRC in finding that the appellant failed to show that there existed valid grounds to declare the respondent redundant,” the judges noted.
“In the present appeal, the respondent was not given notice of redundancy, and was informed of the same the day that his employment was being terminated. There was no notification in writing made to the respondent’s union or the Labour office. In sum, the respondent was not given any opportunity to be heard, or internalise, discuss, and mitigate the redundancy.”
They judges underscored that the reason why a redundancy process must be procedurally fair and substantively justifiable is because it is an involuntary termination of employment that occurs through no fault or mistake of an employee.
“We accordingly find that the termination of the respondent from the appellant’s employment on grounds of redundancy could not be justified, both for substantive infirmity and procedural impropriety, and we have no reason to fault the learned trial Judge’s finding that the termination was therefore unfair,” the judges said.
The media house had also contested the legality and justification for the award by Justice Wasilwa.
It said that the judge erred in law and in fact by awarding the respondent 10 months’ salary as compensation for unfair termination, and failed to consider the payment made and received by the respondent at the time of termination.
NMG also contended that the judge failed to consider the import of the discharge voucher signed by the respondent, saying that awarding the Ksh 3,844,110 amounted to unjust enrichment of Munene, who had already received a substantial amount of money from the media house as terminal benefits following the termination.
Additionally, it held that assessing the compensation at 10 months was excessive, and Justice Wasilwa did not consider the circumstances of the instant case in arriving at his decision.
It also said that the judge did not give any reasons to justify the award of 10 months’ salary compensation for
unfair termination.