Richard Erskine Leakey & 2 others v Samson Kipkoech Chemai [2019] KECA 700 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a recalled Ambassador was only entitled to notice pay and gratuity, not the full value of his unexpired contract.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the letter of recall dated 14th October 1999, signed by the 2nd appellant as Permanent Secretary, lawfully exercised the Presidential power to appoint and remove an Ambassador under Sections 111(2), 23(1) and 25(1) of the repealed Constitution
- 2.Whether the doctrine of legitimate expectation applied to the respondent's fixed-term ambassadorial appointment, and whether it was pleaded
- 3.Whether the learned judge erred in the quantum and heads of damages awarded, including salary for the unexpired 22 months and loss of school fees
Key legal issues
#Whether the recall letter signed by the Permanent Secretary lawfully exercised Presidential power under the repealed Constitution
Yes. Section 111(2) must be read with Section 23(1), which allows officers subordinate to the President to exercise executive authority; the 2nd appellant, as Permanent Secretary, was a duly authorized officer and the letter was lawful.
Section 111(2) vests the power to appoint and remove Ambassadors in the President, but Section 23(1) permits executive authority to be exercised directly or through officers subordinate to the President. It was not disputed that the 2nd appellant signed the recall letter as Permanent Secretary, an officer subordinate to the President. The Local Agreement also contemplated communication through the Permanent Secretary, and the letter took effect and was implemented.
Whether the doctrine of legitimate expectation applied to the respondent's ambassadorial appointment
No. A fixed-term contract cannot override the constitutional provisions on appointment and removal; no legitimate expectation could arise to hold a constitutional office contrary to Sections 111(2) and 25(1), and in any event legitimate expectation was not pleaded.
The court examined the amended Plaint and found legitimate expectation was never pleaded. On the law, a constitutional office is not property and confers no vested proprietary interest; the doctrine of pleasure, though modified, is subject to constitutionalism. The respondent's contract was subject to Section 111(2) as read with Section 25(1) and Clause 9 of the Local Agreement, which allowed termination on notice; the only representation was the contract renewal and the Local Agreement terms, which did not promise service for the full term.
Whether the judge erred in the quantum and heads of damages
Yes. The awards based on legitimate expectation (US$ 133,122 and Ksh. 985,800) and the school fees awards (US$ 25,800 and US$ 27,000) were set aside; the respondent was entitled only to one month's salary in lieu of notice and gratuity of 25% of basic salary; the finding that other allowances required full service was affirmed.
Having found no legitimate expectation, the award founded on it fell ipso facto. Clause 9 of the Local Agreement provided for termination by notice or salary in lieu, not payment of the unexpired term; comparative jurisprudence (Uganda, Canada, Privy Council, US) confirms that where a fixed-term contract has a termination clause, damages are limited to the notice period. School fees were neither provided for in the Local Agreement nor proved by evidence of payment. Allowances dependent on actual performance are not recoverable.
Legal principles established
#- The power to appoint or remove an Ambassador under Section 111(2) of the repealed Constitution may properly be communicated under the hand of a duly authorized officer subordinate to the President; the President need not directly sign the letter of recall or appointment.
- There can be no legitimate expectation to hold a constitutional office beyond the express terms, conditions and limits stated in the Constitution; the doctrine of legitimate expectation cannot oust clear constitutional provisions.
- Where a fixed-term contract of employment contains a termination clause, damages on wrongful termination are limited to the notice period (or salary in lieu) provided in the contract, not remuneration for the unexpired term.
- In calculating damages for wrongful termination, only emoluments or gross salary are recoverable, not allowances and privileges dependent on actual service and performance of the contract.
Court orders
#- 1.The judgment and decree of the Employment and Labour Relations Court dated 10th November 2017 is set aside in its entirety
- 2.The respondent is entitled to payment of one month's salary in lieu of notice as provided for in Clause 9 of the Local Agreement
- 3.The respondent is entitled to payment of gratuity equivalent to 25% of the aggregate of the basic salary paid during the period of service
- 4.Each party is to bear its own costs in this appeal and the High Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- Nairobi ELRC Cause No. 842 of 2013 (formerly HCCC No. 1183 of 2001)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, Article 164; Court of Appeal Rules) against the judgment and decree of the Employment and Labour Relations Court
Relief refused
#Award of US$ 133,122 and Ksh. 985,800 based on legitimate expectation for the unexpired 22 months
The judge erred in applying the doctrine of legitimate expectation, which cannot oust the express provisions of Sections 111(2) and 25(1) of the repealed Constitution; the contract had a termination clause entitling the employee only to notice or salary in lieu
Award of US$ 25,800 and US$ 27,000 as loss of school fees
School fees were not part of salary or emoluments, the Local Agreement made no provision for them, and there was no evidence of payment
Payment for the unexpired period of the contract
Clause 9 of the Local Agreement entitled the respondent only to three months' notice or one month's salary in lieu of notice
Costs
Each party is to bear its own costs in this appeal and the High Court
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Pursuant to Section 111 (2) of the repealed Constitution, the decision of the Government or President to recall a person appointed as an Ambassador could properly be communicated under the hand of a duly authorized officer subordinate to the President; the President need not directly sign the letter of recall or appointment.
There can be no legitimate expectation to hold any constitutional office beyond the terms, conditions and limits expressly stated in the Constitution.
In this matter, pursuant Clause 9 of the Local Agreement, the respondent is not entitled to payment for any unexpired period of the contract. The right of the respondent at the point of disengagement is to either a three months’ notice or one month’s salary in lieu of notice.
When calculating damages due to an employee in the event of unfair or wrongful termination, it is only the emoluments or gross salary of the employee that should be taken into account not allowances and privileges dependent on actual service and performance of the contract.
The judgment an decree of the Employment and Labour Relations Court dated 16 th November 2017 is hereby set aside in its entirety.
Taking into account the appellants are represented by the State Law Office, each party is to bear its own costs in this appeal and the High Court.
Issues in the judgment
#The coram and judgment heading describe the decision below as dated 10th November 2017, but the concluding order states a different date of '16th November 2017' for the same judgment being set aside.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Erskine Leakey & 2 others v Samson Kipkoech Chemai [2019] KECA 700 (KLR)", Case Analysis (2019). Civil Appeal No. 64 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/700/eng@2019-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.