SHAMSA WANJUKI NJAGI V SUPREME COUNCIL OF KENYA MUSLIMS [2013] KEELRC 410 (KLR)
The bottom line
#A Kenyan court ruled that calling someone a 'consultant' does not make it so — SUPKEM unfairly fired an employee and must pay her Kshs. 232,000.
What this practically means
#Executive summary
#Key legal issues
#Status of the Claimant: employee or consultant
Though referred to as a consultant, the Claimant was an employee of the Respondent on a contract of service renewable from month to month.
The court noted it is not in dispute there was a contract of engagement running month to month, at Kshs. 2,000 per day for 20 days per month. Clause 6 of the Respondent's own contracts referred to the Claimant as an employee of SUPKEM. Relying on Daniel Inyangu Dungani v Mary Khagali Lumula, the court held that the terminology used by the parties is immaterial; the substance of the relationship governs. On all the circumstances, the engagement was a contract of service.
Whether the termination was unfair
The termination was unfair within the meaning of Section 45 of the Employment Act, 2007.
Under Section 43(1) the employer must prove the reason for termination. The Respondent alleged the Claimant was involved in fraudulent activities, an accusation that was not substantiated. Further, the allegation would fall under misconduct, requiring compliance with Section 41's procedure of explanation and hearing, which was not followed. The termination was therefore both substantively and procedurally unfair.
Remedy for the unexpired term of the program
The claim for salary up to the end of the Global Fund Program was declined.
Since the employment was based on renewable monthly contracts, awarding salary for the unexpired program period would effectively amount to specific performance, a remedy granted sparingly in employment cases. Citing Southern Highlands Tobacco v McQueen on compensation subject to mitigation, the court held the only remedies available were compensation for unfair termination and pay in lieu of notice.
Legal principles established
#- In determining whether an employment relationship exists, the label the parties use for the relationship is not decisive; the court looks at the substance of the engagement.
- An employer bears the burden of proving the reason for termination; failure to do so renders the termination unfair, and allegations of misconduct must be proved and the procedure in Section 41 of the Employment Act followed.
- An employee wrongfully dismissed is entitled to full compensation for financial loss subject to the duty to mitigate, and the loss is not necessarily the unexpired term's emoluments.
Court orders
#- 1.3 months' pay as compensation for unfair termination of Kshs. 135,000
- 2.Salary in lieu of notice of Kshs. 45,000
- 3.Unpaid leave of Kshs. 45,000
- 4.Salary for 2 days worked in November 2010 of Kshs. 4,500
- 5.Accommodation costs incurred in Mombasa of Kshs. 2,500 (total award Kshs. 232,000)
- 6.Respondent directed to re-issue the Claimant's certificate of service in the format set out in Section 51 of the Employment Act, 2007
- 7.Each party to bear their own costs
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wilson Reuben Sibiya v Kenya National Examinations Council [2016] KEELRC 519 (KLR)[2016] KEELRC 519 (KLR)19 Jul 2016
Cite this brief
#Cite this brief
Caselaw, "SHAMSA WANJUKI NJAGI V SUPREME COUNCIL OF KENYA MUSLIMS [2013] KEELRC 410 (KLR)", Case Analysis (2013). Cause 416 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/410/eng@2013-04-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.