Jennifer Kimani v Permanent Secretary Ministry of Roads & 2 others [2013] KEELRC 659 (KLR)
The bottom line
#A Kenyan court ordered KURA to pay a former finance manager about Sh3 million for terminating her contract without notice or a fair performance appraisal.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination/non-renewal of the claimant's contract was unfair
Yes - the respondent acted unfairly by failing to follow the contract's termination clause and by not subjecting the claimant to any performance appraisal as required by section 41 of the Employment Act
The letter of appointment allowed premature termination on performance grounds but required appraisal and notice. No appraisal system existed until March 2012 and no appraisal of the claimant was undertaken. The respondent ambushed the claimant days before contract expiry despite her timely renewal request. This violated section 41 of the Employment Act and the court's interpretation of Article 41 of the Constitution on fair labour practices.
Whether notice pay was due
Yes - clause 26 required three months' notice or payment in lieu, which was not given
The respondent did not follow clause 26 on notice. Since no notice was issued, three months' basic pay plus house allowance was payable, computed at Kshs.1,028,733.00.
Whether gratuity, leave and allowances were payable
Yes - gratuity at 31% of annual basic salary based on last basic salary, plus leave dues and outstanding allowances, totalling Kshs.1,973,467.00
Clause 14 of the letter of appointment provided for a one-off gratuity at 31% of annual basic salary. Since annual basic salary is graduated, it is computed on the last basic salary earned. Leave dues of Kshs.274,328.80 and outstanding allowances of Kshs.44,468.00 were added.
Effect of the claimant's own conduct on the remedies
The claimant's confrontational conduct at the workplace undermined her claims for damages for breach and damage to character
The court noted the claimant's demeanour in evidence was anxious and confrontational, and that she confronted her superiors in disregard of protocol. While her anti-corruption reports were commended, her conduct was relevant to the discretionary heads of damages, which were refused.
Legal principles established
#- A written employment contract governs the terms of the relationship and will not be disturbed unless contrary to written law
- Termination on grounds of poor performance requires compliance with the procedural fairness requirements of section 41 of the Employment Act
- Where notice required by the contract was not issued, payment of three months basic pay plus house allowance in lieu of notice is due
- Gratuity computed on annual basic salary is based on the last basic salary earned where the contract does not otherwise specify
Court orders
#- 1.Judgment entered for the claimant against the 2nd respondent for notice pay at Kshs.1,028,733.00
- 2.Gratuity awarded at Kshs.1,973,467.00
- 3.Interest on the awards at court rates from the date of judgment
- 4.The claimant to be issued with her Certificate of Service within 14 days, sent to her advocates and a copy to her last stated address
- 5.Costs of the suit to the claimant
- Jurisdiction invoked
- Industrial Court of Kenya jurisdiction over employment and labour relations disputes (claim for unfair termination of employment and terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jennifer Kimani v Permanent Secretary Ministry of Roads & 2 others [2013] KEELRC 659 (KLR)", Case Analysis (2013). Cause No. 1197 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/659/eng@2013-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.