Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 255 of 2011· [2013] KEELRC 791 (KLR)

Mary Nyangasi Ratemo & 9 others v Kenya Police Staff Sacco Limited & another [2013] KEELRC 791 (KLR)

Industrial Court of Kenya
18 September 2013
MMM. Mbaru
9,223 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~37 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that being moved between linked employers without written notice changes nothing legally, and leaving staff idle still counts as unfair dismissal.

What this practically means

#

Executive summary

#
Nine claimants sued the Kenya Police Staff Sacco Limited (1st respondent) for unlawful and constructive dismissal and unpaid terminal dues. The 1st respondent denied liability, contending that following a 1995 separation it ceased to employ the claimants, who became employees of Utumishi Investment Limited (2nd respondent), which was joined to the suit. Only four claimants (Stephen Siakani, Eliud Mumataya, Mary Nyangasi Ratemo and Priscah Sang) pursued their claims; six had been re-engaged by the 2nd respondent. The court framed four issues: the relationship between the respondents, the identity of the employer, the meaning of secondment/deployment/transfer, and whether the claimants were constructively or unfairly terminated. Applying sections 10 and 13 of the Employment Act, the court held the employers bore a mandatory duty to notify the claimants of any change in their employment status, which neither did. It found the 1st respondent remained the employer from 1993 to September 2010, that secondment does not terminate the original contract, and that the claimants, who reported to work in October 2010 but were given no work, were constructively dismissed and unfairly terminated. Redundancy was rejected. The court awarded the four claimants compensation of 12 months' salary, one month's notice pay, October 2010 salaries and, for Mary Nyangasi, unpaid leave; certificates of service were ordered and costs against the 2nd respondent. Reinstatement, salary increments, service pay, house, commuter and medical allowances were declined. The claims of the six non-participating claimants were dismissed.

Key legal issues

#
01

Identity of the employer - 1st or 2nd respondent

Holding

The 1st respondent remained the employer of the claimants from 1993 until September 2010; the alleged transfer or secondment did not terminate the employment contract with it

Reasoning

The claimants were issued letters of appointment by the 1st respondent and their work numbers remained the 1st respondent's. Neither entity ever formally communicated any change of status to the claimants as required by section 10(5) of the Employment Act. The respondents failed to formalise the alleged transfer or secondment, and the duty to notify the affected staff of the separation rested on the 1st respondent. Failing such notification, the contractual relationship with the 1st respondent subsisted.

p. 12
02

Nature of secondment, deployment and transfer

Holding

On secondment the original employer remains the employer and may recall the employee; a transfer requires formal communication, and neither operated to terminate the 1st respondent's obligations

Reasoning

Relying on the doctrine as expounded in the authorities and the article cited, the court held that transfer ends the original employment only where properly communicated and accepted, whereas secondment leaves the original contract running. The absence of any secondment agreement or formal communication meant the claimants' contracts with the 1st respondent continued until termination.

p. 11
03

Constructive dismissal and unfair termination

Holding

The claimants were constructively dismissed by the 1st respondent and the termination was unfair

Reasoning

From 1st October 2010 the claimants reported to work but were given no work by the 1st respondent, forcing them out without notice or reason. The 1st respondent failed to prove any reason for the termination as required by sections 43 and 45 of the Employment Act, and the manner of dealing with the claimants amounted to an unfair labour practice contrary to Article 41 of the Constitution.

p. 12
04

Appropriateness of the foreign authority relied on by the 1st respondent

Holding

The English case of Dr. C. Fitton v City of Edinburgh Council was distinguished

Reasoning

In that case the appellant did not intend to return to work with the original employer, whereas the claimants here consistently considered themselves employees of the 1st respondent. Further, Kenya lacks the UK statutory regime governing transfers and secondments, so constitutional fair labour principles and Kenyan labour laws prevail.

p. 10

Legal principles established

#
  • Where the status of an employee changes under a written contract, the employer bears a mandatory duty to notify the employee of the change in writing in consultation with the employee
  • On secondment the original employer remains the employer at all material times; on a genuine transfer the new company becomes the employer, but the transferring employer must inform the affected employee
  • A transfer or secondment does not of itself terminate the contract of employment with the original employer
  • Where an employee is ready and willing to work but is forced out of work without their own act, this constitutes constructive dismissal
  • The employer bears the burden of proving the reasons for termination failing which the termination is unfair under sections 43 and 45 of the Employment Act
  • The right to transfer an employee is an implied employer's right which a court will not interfere with absent disregard of fair labour practices

Court orders

#
  1. 1.A declaration that the claimants were constructively terminated by the 1st respondent which termination was unfair
  2. 2.Stephen Siakani awarded Kshs.353,150.00 (compensation for unfair termination Kshs.302,700.00; notice pay Kshs.25,225.00; pay due for October 2010 Kshs.25,225.00)
  3. 3.Eliud Mumataya awarded Kshs.377,790.00 (compensation Kshs.323,820.00; salary for October 2010 Kshs.26,985.00; notice pay Kshs.26,985.00)
  4. 4.Mary Nyangasi awarded Kshs.363,375.00 (compensation Kshs.290,700; salary for October 2010 Kshs.24,225.00; leave days unpaid and pro rata leave Kshs.24,225.00; notice pay Kshs.24,225)
  5. 5.Priscah Sang awarded (compensation Kshs.290,700.00; salary for October 2010 Kshs.24,225.00; notice pay Kshs.24,225.00)
  6. 6.The 1st respondent to issue all the claimants with their Certificates of Service within 14 days
  7. 7.Costs of the suit for the four successful claimants to be met by the 2nd respondent

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 20, 21, 25, 41 and 232
  • Employment Act, 2007Sections 10(1) and (5), 13, 28, 35(1)(c), 43 and 45
  • Repealed Employment Act, Cap 226general
  • Labour Institutions ActSections 12 and 15
  • ILO Convention 158general

Cases cited (3)

  • Dr. C. Fitton versus City of Edinburg Council
    No. UKE ATS/0010/07/MT
  • Bank Simpnan National Finance Bhd & Another versus Omar Hashim
    [2002] 1 ILR 272, Award No. 1013 of 2005
  • Complex Services Asia Pacific Region, Miri versus Grame Ashley Powern
    [1987] 2 ILR, 34
Jurisdiction invoked
Labour Institutions Act, sections 12 and 15, and Article 41 of the Constitution (fair labour practices)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (12)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Mary Nyangasi Ratemo & 9 others v Kenya Police Staff Sacco Limited & another [2013] KEELRC 791 (KLR)", Case Analysis (2013). Cause No. 255 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/791/eng@2013-09-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.