Robert Machatha Kihara v University of Nairobi [2014] KEELRC 703 (KLR)
The bottom line
#Kenya's Employment Court ruled the University of Nairobi unfairly ended a just-renewed contract, awarding the employee about Kshs. 1.45 million.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for termination
The grounds suggested (unsatisfactory special appraisal and vehicle repair complaints) were not valid grounds, since the University had renewed the contract with full knowledge of those records
The special appraisal by Dr. Ogola was unexplained and the annual appraisals showing the Claimant met expectations were not considered. Professor Mutuli strongly endorsed renewal days before termination. The decision to renew, communicated on 12th July 2011, showed the alleged grounds had no validity, as the records were available when renewal was made. Complaints touched only about five vehicles in a fleet of 250 and were directed at a system rather than the individual.
Procedural fairness of termination
Termination was procedurally unfair as no reasons were given in the termination letter and the Claimant was never charged or heard
The letter of termination gave no reason beyond stating services were no longer required. The Respondent nowhere stated it formally communicated any charges to the Claimant or offered him an opportunity to defend himself. The University's ISO-certified procedures and the rules of natural justice required a disciplinary process before dismissal.
Effect of renewal of contract
By renewing the contract of its own volition, the Respondent imposed on itself new legal obligations which it could not escape without justification
The Respondent could simply have allowed the first contract to lapse on 30th September 2011 without justification. Instead it offered an early renewal which the Claimant accepted, changing the legal position in his favour. Terminating even before the ink had dried on the renewed contract, without reason or procedure, breached those obligations and entitled the Claimant to redress.
Quantum of compensation
A 12 months' salary compensatory award was granted in place of anticipatory salaries for the unexpired contract term
The double termination was without valid reason or procedural fairness. However, the Claimant did not merit salaries for the entire remaining contract term since he performed no work. Applying the fair go all round principle and the presumption of mitigation, the redress lay in a compensatory award of 12 months' salary at Kshs. 95,935 per month, totaling Kshs. 1,151,220, rather than unjust enrichment.
Legal principles established
#- An employer cannot make and unmake contracts without communicating cogent reasons for termination or giving the employee an opportunity to respond to allegations
- Compensation for unfair termination must redress economic injury without unjustly enriching the employee or punishing the employer; the fair go all round principle applies
Court orders
#- 1.Declaration that termination of the Claimant's contracts of employment was unfair
- 2.Respondent to pay the Claimant 3 months' salary in notice pay at Kshs.293,935 and 12 months' salary in compensation at Kshs. 1,151,220
- 3.Total sum of Kshs.1,445,155 to be paid by the Respondent to the Claimant within 30 days of delivery of the Award
- 4.Certificate of service to be availed by the Respondent to the Claimant forthwith
- 5.No order on the costs
- Jurisdiction invoked
- Employment and Labour Relations jurisdiction over unfair and unlawful termination (Issue in Dispute: unfair and unlawful termination under the Employment Act 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Machatha Kihara v University of Nairobi [2014] KEELRC 703 (KLR)", Case Analysis (2014). Cause Number 1707 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/703/eng@2014-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.