The German School Society & another v Ohany & another (Civil Appeal 325 & 342 of 2018 (Consolidated)) [2023] KECA 894 (KLR)

Drawing on Indian Supreme Court authority, the court distinguished a continuing wrong (a single wrongful act creating a continuing source of injury, such as recurring underpayment each month) from recurring wrongs and from the mere continuing effect of a completed wrong. Because the respondent continued to work under unequal pay, the breach was continuing and crystallised on termination; the claim filed in December 2014, after termination in July 2014, was within the limitation period.

Article 163(7) binds all courts to Supreme Court decisions, but a case is only authority for what it decides. Mumba involved members of a retirement benefits scheme governed by the Retirement Benefits Act; here the respondent was not yet a member and her complaint was denial of the opportunity to join. Material differences in facts, including ineligibility by age, distinguished the precedent, and ELRC jurisdiction flows from Article 162(2)(b) of the Constitution.

The respondent's own admissions in cross-examination showed she knew of the scheme, that her window to join lapsed in 1997, that she was a trustee and knew joining was voluntary, and that by 2014 she was over 55 and ineligible. Her letter of 12 May 2014 complained of denial of membership, not lack of knowledge of the scheme. The damages for discrimination, being premised on the contrary finding, could not stand.

The court adopted Kenya Airways v Aviation & Allied Workers Union: consultation is implicit in the Employment Act, supported by ILO Convention No. 158 and Article 47 of the Constitution and the Fair Administrative Action Act. Although the letter contained the reasons for and extent of the intended redundancy, there was no evidence of any consultations of the kind envisaged, so the trial judge's finding of unfair termination on procedural grounds was upheld.

The court must exercise discretion judicially, considering the statutory factors including length of service, expectations of continued employment, prospects of comparable employment, severance already paid and the circumstances of termination. Weighing factors (a), (e), (f), (g), (h) and (m), and noting the respondent had already received notice pay, severance at 15 days per year and accrued leave, 12 months was excessive and 6 months was appropriate.

Pleadings set the bounds of a case; evidence cannot cure a plea never made. The statement of claim sought €43,264.55 from 2008 'onwards', an imprecise prayer, while the reviewed award covered 2003 to September 2007, a period neither pleaded nor in evidence. An error of that magnitude is not an error on the face of the record justifying review, and the defence was wrongly dismissed as a mere denial.