Jacqueline Kwamboka v International Energy Technik Limited [2014] KEELRC 596 (KLR)

Industrial Court of Kenya

4 March 2014

DMD.K. Njagi Marete

2,374 words in judgment

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The bottom line

A Kenyan court awarded an employee the full remaining salary of her fixed term contract because her employer gave no valid reason and no fair hearing before firing her.

What this practically means

Executive summary

The claimant, employed as a secretary on 17th August 2005 and confirmed on 8th February 2006, had her contract renewed severally, the last renewal being a two-year term from 1st September 2011 to 31st August 2013. On 30th November 2011 the respondent terminated her employment, citing her refusal to take on additional duties in the department and its consequent unsustainability. The claimant sued for unlawful termination, invoking Article 41 of the Constitution and Sections 41 and 45 of the Employment Act, and sought compensation for the remainder of the contract period, accrued leave, damages in the alternative, a certificate of service and costs. The respondent admitted the employment and termination but contended it was grounded in operational requirements and that the claimant was given an opportunity to make representations. The court framed four issues: whether the termination was wrongful, unfair and unlawful; whether the contract was a fixed term contract; entitlement to relief; and costs. Holding that a termination must satisfy both substantive and procedural requirements under Sections 41 and 45 of the Employment Act, the court found the respondent had not proved a valid reason nor accorded fair process, and declared the termination unfair and unlawful. The contract was held to be a fixed term contract. The claimant was awarded Kshs. 882,000 for the unexpired 21 months of the term plus Kshs. 126,000 being three months' compensation for unfair termination, a total of Kshs. 1,008,000; a certificate of service was ordered, and costs were awarded to the claimant.

Key legal issues

Whether the termination of the claimant's employment was wrongful, unfair and unlawful

Holding

The termination was unfair and unlawful because the employer failed to prove a valid reason and did not follow fair procedure under Sections 41 and 45 of the Employment Act and Article 41 of the Constitution.

Reasoning

The court held that termination must satisfy both the substantive test (a valid and fair reason related to conduct, capacity or operational requirements) and the procedural test (explanation and hearing under Section 41). The respondent attributed the termination to the claimant's refusal to take on additional duties but gave no prior warning and the claimant's views were never sought. Neither substantive nor procedural requirements were met, rendering the termination unfair.

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Whether the claimant's contract was a fixed term contract

Holding

The contract, renewed periodically and on 18th August 2011 extended for two years to 31st August 2013, was a fixed term contract.

Reasoning

It was not disputed that the claimant was employed on 17th August 2005, confirmed on 8th February 2006 and that the contract was renewed until its final two-year extension running to 31st August 2013. The court characterised this uncompleted extended contract as a fixed term contract, which underpinned the award of compensation for the unexpired remainder of the term.

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Whether the claimant is entitled to the relief sought

Holding

Having succeeded on unfair termination, the claimant qualified for compensation for the remainder of the contract period, three months' compensation for unfair termination, and a certificate of service.

Reasoning

The court awarded 21 months' salary for the unexpired fixed term (Kshs. 882,000) plus three months' compensation for unfair termination (Kshs. 126,000), totalling Kshs. 1,008,000, and ordered issuance of a certificate of service as required by the Employment Act. Costs were awarded to the claimant.

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Legal principles established

A valid and fair termination requires both substantive justification and adherence to the procedural requirements of Sections 41 and 45 of the Employment Act.
A periodically renewed employment contract extended for a fixed period which is terminated before completion amounts to a fixed term contract.

Court orders

1.Compensation for the remainder of the contract period from 01.12.2011 to 31.8.2013, 21 months at Kshs. 42,000/= per month totalling Kshs. 882,000.00
2.3 months' compensation for unfair termination of employment, Kshs. 126,000.00, bringing the total award to Kshs. 1,008,000.00
3.The respondent is ordered to issue a certificate of service to the claimant
4.The costs of this cause shall be borne by the respondent

Authorities

Legislation

Constitution of Kenya, 2010Article 41
Employment Act, No. 11 of 2007Section 45
Employment Act, 2007Section 41

Jurisdiction invoked: Industrial Court jurisdiction under the Labour Relations Act over employment disputes; claim founded on Article 41 of the Constitution of Kenya, 2010 and the Employment Act, No. 11 of 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.

Kenya Airways Pilots Association v Kenya Airways Limited [2016] KEELRC 1547 (KLR)
[2016] KEELRC 1547 (KLR)25 Feb 2016

Cite this brief

Caselaw, "Jacqueline Kwamboka v International Energy Technik Limited [2014] KEELRC 596 (KLR)", Case Analysis (2014). Cause No. 2093 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/596/eng@2014-03-04

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