Kenya Methodist University v Kaungania & another (Civil Appeal 61 of 2017) [2022] KECA 90 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a university, not the seconding church, was the real employer, so terminating staff over withdrawn secondment approval was unfair.
What this practically means
#Executive summary
#Key legal issues
#Identity of the employer during secondment
The Appellant was the principal employer; the Methodist Church in Kenya was a residual, nominal employer and the Presiding Bishop became functus officio after approving the three-year secondment.
The employment relationship is essentially contractual. The Appellant issued the letters of appointment, paid remuneration, remitted pension contributions and specified duties, while the Appellant produced no contract between the Respondents and the Church. Under secondment the employee works for and is paid by the host entity, so the host is the substantive employer and the seconding body's powers are residual.
Effect of withdrawal of approval of secondment before expiry of the contract
The withdrawal had no legal effect; reliance on it to terminate was a breach of contract, both premature and unfair.
A plain reading of the contracts shows the Bishop's approval was a condition precedent to appointment or renewal and covered the three-year term; termination was by either contracting party on three months' notice or pay in lieu. The contracts gave the Bishop no role in termination, so the Appellant's reliance on the withdrawal breached the contract. Termination without a valid fair reason violated sections 43, 45 and 46 of the Employment Act.
Remedies merited on unlawful and unfair termination
Respondents entitled to pay for the unexpired term of their contracts plus pay in lieu of notice under sections 49 and 50 of the Employment Act; ELRC's awards of salary arrears, leave pay, allowances and gratuity set aside as unproved special damages.
Section 50 directs courts to apply the section 49 factors in wrongful dismissal suits. The 1st Respondent had 4 months' contract unexpired and the 2nd Respondent 8 months, plus 3 months' pay in lieu of notice. Special damages must be specifically pleaded and proved; quantum was never ascertained by the trial court, no evidence supported leave days or allowances, and gratuity was expressly excluded from the 1st Respondent's appointment letter.
Legal principles established
#- In a secondment arrangement, the principal employer is the entity that assigns duties and pays the employee's salary during the secondment; the seconding entity is a nominal employer with only residual powers and duties.
- Where approval of a secondment is a condition precedent to employment and termination of the contract is provided for by notice between the contracting parties, withdrawal of the seconding entity's approval has no legal effect on the employment contract.
- An employee who affirms a contract at a particular job group by performing duties and accepting the pay cannot at termination claim promotion or higher job-group pay; special damages must be specifically pleaded and proved.
Court orders
#- 1.Set aside order 1 of the ELRC judgment and substitute judgment in favour of the 1st Claimant in terms of prayers a, b, c and d of her statement of claim dated 11th January 2016
- 2.Set aside order 2 of the ELRC judgment and substitute judgment in favour of the 2nd Claimant in terms of prayers a, b and c of his statement of claim dated 11th January 2016
- 3.Set aside orders 3 and 4 of the ELRC judgment in their entirety
- 4.Award the 1st Claimant 4 months' gross salary at the scale and rate applicable at the date of termination, being salary for the unexpired term of her contract, and pay in lieu of notice
- 5.Award the 2nd Claimant 8 months' gross salary at the scale and rate applicable at the date of termination, being salary for the unexpired term of his contract, and 3 months' pay in lieu of notice
- 6.The Appellant to pay the Respondents' costs of this appeal and of the suits in the ELRC
- On appeal from
- Employment and Labour Relations Court at Nyeri
- Nyeri Employment and Labour Relations Court Cause No 4 of 2016 as consolidated with Nyeri Employment and Labour Relations Court Cause No 5 of 2016
- Jurisdiction invoked
- First appellate jurisdiction under the Employment and Labour Relations Court Act / Court of Appeal appellate jurisdiction over ELRC decisions (not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Simotwo v County Government of Narok & 2 others (Employment and Labour Relations Cause E104 of 2024) [2025] KEELRC 1580 (KLR)[2025] KEELRC 1580 (KLR)30 May 2025applied
- St Leonard’s Maternity & Nursing Home v LMM (Civil Appeal 59 of 2019) [2023] KECA 1148 (KLR)[2023] KECA 1148 (KLR)22 Sept 2023
Cite this brief
#Cite this brief
Caselaw, "Kenya Methodist University v Kaungania & another (Civil Appeal 61 of 2017) [2022] KECA 90 (KLR)", Case Analysis (2022). Court of Appeal Appeal (Nairobi) arising from Nyeri ELRC Cause No. 4 of 2016 as consolidated with Nyeri ELRC Cause No. 5 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/90/eng@2022-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.