Michael Kiio Ireri v Embu Water & Sanitation Company Limited [2015] KEELRC 93 (KLR)
The bottom line
#A Kenyan court ruled that once an employee accepts a job renewal offer, the employer cannot withdraw it and must reinstate and pay the worker.
What this practically means
#Executive summary
#Key legal issues
#Date of expiry of the claimant's last contract
The last contract of service was to end on 31.01.2015 as pleaded and submitted for the claimant.
The 2011 renewal request placed expiry at 31.01.2012; the board meeting of 30.03.2012 resolved renewal for a further 3 years, conveyed by letter dated 2.04.2012 commencing 1.02.2012, and no material showed the contents were varied. The claimant held the technical manager position from 1.02.2009 to 27.02.2015, and the respondent admitted receipt of his renewal expression of interest by letter dated 13.08.2014.
Whether the claimant's acceptance of the renewal offer was conditional
The claimant unconditionally accepted the offer for renewal of the contract of employment.
The claimant's letter of 9.01.2015 expressly accepted the renewal with the conditions therein; the managing director acknowledged receipt and treated the claimant's remarks as concerns to be incorporated in the contract to be signed, not as preconditions. The respondent failed to identify any alleged condition evidencing conditional acceptance. Observations accompanying acceptance were in line with the parties' contemplated negotiation of a formal contract.
Whether the board could recall the renewal offer
The respondent's board could not validly recall or withdraw the offer of renewal once accepted.
Acceptance concluded the renewal contract, so there was no offer in place to recall; the employer could only terminate the employment in accordance with law and agreement. Section 10(5) of the Employment Act requires consultation and written notification for contractual changes, and the HR policy manual contained no provision for withdrawal of a renewal offer; such invented action could not be introduced unilaterally.
Remedies
Claimant entitled to declaration of nullity of the 27.02.2015 letter, reinstatement by specific performance, salary and benefits from 1.03.2015, and costs; declaration on the 2012 contract and constitutional claims failed.
The position was preserved through the suit by consent orders, no reason opposed reinstatement, and the sole termination reason was the board's mistaken view that acceptance was conditional. Following the court's own opinion in the Timber Treatment case, an employee unlawfully kept from work is entitled to pay for that period and partial reinstatement, subject to taking other gainful employment or failing to exculpate himself.
Legal principles established
#- Once an offer of renewal of employment is unconditionally accepted, a renewal contract is concluded and the offer lapses; the employer cannot recall or withdraw it and may only terminate employment in accordance with law and agreement.
- Under section 10(5) of the Employment Act, 2007, changes to stipulated contractual matters require consultation with the employee and written notification.
- An employee unlawfully kept away from work is entitled to pay for that period and to at least partial reinstatement, unless the employee took other gainful employment or fails to exculpate himself.
Court orders
#- 1.Declaration that the respondent's letter dated 27.02.2015 purporting to reject renewal of the claimant's contract is null and void ab initio
- 2.Order of specific performance compelling reinstatement of the claimant as the respondent's technical manager, to report to the managing director on Monday 15.12.2015, without loss of benefits and on terms applicable before termination on 28.02.2015 or better terms as agreed, to continue in employment unless the employment relationship lawfully terminates
- 3.Respondent to pay the claimant his salary and benefits from 1.03.2015 until employment is lawfully terminated under Part VI of the Employment Act, 2007, with all due payments to be made by 01.01.2016 failing interest at court rates from the date of judgment until full payment
- 4.Respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Articles 27, 28, 41, 47 and 50 of the Constitution (as invoked in the claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Kiio Ireri v Embu Water & Sanitation Company Limited [2015] KEELRC 93 (KLR)", Case Analysis (2015). Employment Cause (memorandum of claim filed 10.04.2015) - Nyeri. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/93/eng@2015-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.