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Court of AppealDismissedCivil Appeal No. 132 of 2011· [2016] KECA 429 (KLR)

International Planned Parenthood Federation v Pamela Ebot Arrey Effiom [2016] KECA 429 (KLR)

Court of Appeal
1 July 2016
Mohamed Abdulahi WarsameM. WarsamePhilomena Mbete MwiluP.M. MwiluFSF. Sichale
4,136 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Even after paying a departing employee three months' salary in lieu of notice, an employer must still explain why the termination occurred or face an unfair termination finding.

What this practically means

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Executive summary

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This Court of Appeal judgment (Warsame, Mwilu and Sichale, JJ.A) dismisses the appeal by International Planned Parenthood Federation against an Industrial Court award in favour of Pamela Ebot Arrey Effiom, whose employment as Deputy Regional Director was terminated with immediate effect before the expiry of her fixed-term contract. The appellant abandoned its jurisdictional ground based on diplomatic immunity, leaving two issues: whether the termination was unlawful or wrongful, and whether the reliefs were justified. The court held that although the appellant complied with section 35 of the Employment Act by paying three months' salary in lieu of notice, and the Industrial Court erred in finding the premature ending of the contract wrongful, the termination was nonetheless unfair because the employer never gave any reason for it and denied the employee an opportunity to be heard, adopting the reasoning in Kenfreight v Nguti. On quantum, the court held that notice pay and compensation of up to twelve months' wages under section 49(1) may be awarded concurrently, and declined to interfere with the ten months' compensation award, finding the discretion judicially exercised in line with C.P.C. Industrial Products v Angima. The court also confirmed the scope of 'matters of law' appeals from the Industrial Court following Gatirau Peter Munya and the Shollei decision. The appeal was dismissed with no order as to costs, thereby affirming the Industrial Court's award, albeit on different reasoning.

Key legal issues

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01

Whether payment of three months' salary in lieu of notice, as required by the contract and section 35 of the Employment Act, sufficed to render the termination lawful

Holding

Payment in lieu of notice complied with section 35, but the employer still bore a statutory duty to give reasons; failure to do so made the termination unfair under section 45.

Reasoning

The court distinguished wrongful dismissal (breach of contract terms) from unfair termination under Part VI of the Employment Act. Although the appellant complied with the notice provisions ex facie, sections 43 and 45 place the burden on the employer to prove a valid and fair reason and fair procedure. The termination letter gave no reasons, the appellant called no witnesses, and the respondent's repeated requests for reasons were refused. The court adopted Kenfreight v Nguti: an employer must explain the reasons for termination and hear the employee before deciding.

p. 6
02

Whether the Industrial Court's finding that the termination was 'wrongful because it prematurely ended the employment' was legally sound

Holding

That holding lacked legal basis; premature termination with due notice or payment in lieu is not per se wrongful, but the termination was unfair for want of reasons.

Reasoning

Section 35 permits termination by notice or payment in lieu, so ending a fixed-term contract early with such payment does not breach the statute. The Industrial Court's reasoning on wrongfulness was therefore wrong. However, under sections 43, 45 and 47(5), the employer must justify the grounds for termination; the appellant furnished none, so the termination was unfair on different reasoning, and the court agreed with the Industrial Court's result.

p. 4
03

Whether compensation of ten months' salary could exceed the remaining seven-month period of the contract

Holding

Yes. Under section 49(1) the remedies of notice pay and up to twelve months' wages may be awarded concurrently, and the discretion was judicially exercised.

Reasoning

Section 15 of the Labour Institutions Act permits compensation up to twelve months' wages for unfair dismissal, and section 50 directs the court to the guidelines in section 49 of the Employment Act. The word 'any or all' in section 49(1) shows notice pay and compensation can coexist. The award was not tied to the residue of the contract; following C.P.C. Industrial Products v Angima, the court would not interfere with a judicially exercised discretion.

p. 7
04

The scope of the Court of Appeal's appellate jurisdiction over Industrial Court awards limited to matters of law

Holding

Adopting Gatirau Peter Munya v Dickson Mwenda Kithinji, 'matters of law' include interpretation of constitutional or statutory provisions, application of the law to the facts, and evaluation of the trial court's conclusions on the evidence.

Reasoning

The court noted it was a first appeal under Rule 29(1) of the Court of Appeal Rules empowering re-appraisal of evidence, and that section 27(2) of the Labour Institutions Act confined appeals to matters of law at the relevant time. It applied the Supreme Court's three-element characterization (technical, practical, evidential) and the Shollei formulation, then proceeded to evaluate the statutory interpretation and conclusions of the Industrial Court.

p. 3

Legal principles established

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  • An employer who has given notice or paid in lieu of notice under section 35 of the Employment Act is nonetheless duty-bound to explain the reasons for termination to the employee, failing which the termination is unfair under sections 43 and 45.
  • Notice pay and compensation of up to twelve months' wages under section 49(1) of the Employment Act may be awarded concurrently.
  • Where an employer gives no reason for termination, the court cannot infer a valid reason such as misconduct, poor performance, incapacity or redundancy.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya 2010Article 162(2)(a)
  • Privileges and Immunities Act4th Schedule paragraph 1
  • Labour Institutions Actsections 11, 12, 15, 27
  • Employment Act 2007sections 35(1), 35(2), 35(4), 36, 40, 41, 41(1), 43, 45, 46, 47(1), 47(5), 49(1), 49(3), 49(4)(a), 49(4)(b), 49(4)(f), 50, 87(1)(b)
  • Employment and Labour Relations Court ActAct No. 20 of 2011
  • Appellate Jurisdiction Actsection 3
  • Elections Actsection 85A
  • Court of Appeal RulesRule 29(1)
  • Retired Constitution of Kenyasections 3 and 64

Cases cited (7)

  • Director Kenya Medical Research Institute v Agnes Muthoni & 35 others
    [2014] eKLR
  • Gatirau Peter Munya v Dickson Mwenda Kithinji & Others
    Petition No. 2B of 2014 [2014] eKLR
  • Judicial Service Commission v Gladys Boss Shollei & another
    [2014] eKLR
  • Kenfreight (E.A.) Limited v Benson K. Nguti
    [2016] eKLR
  • C.P.C. Industrial Products v Angima
    Civil Appeal No. 197 of 1992
  • Butt v Khan
    (1982-88) 1 KAR 1
  • Berkley-Steward v Waiyaki
    (1982-88) 1 KAR 1118
On appeal from
Industrial Court of Kenya at Nairobi
Industrial Cause No. 471(N) of 2009
Jurisdiction invoked
Section 27(1) of the Labour Institutions Act (appeal to the Court of Appeal from an Industrial Court award)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "International Planned Parenthood Federation v Pamela Ebot Arrey Effiom [2016] KECA 429 (KLR)", Case Analysis (2016). Civil Appeal No. 132 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/429/eng@2016-07-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.