Haron Njoroge Gacengechi v Administrator Consolata Institute of Philosophy [2015] KEELRC 1278 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Which contract subsisted at the time of termination
The contract dated 31st January 2011 was the subsisting contract at termination; the Claimant terminated it by his own letter, but the earlier contracts were terminated by the Respondent without due process
The court traced several overlapping contracts (2002, 2004, 2008 and 2011). The 2011 contract was signed by the Claimant and, despite his claim of duress, he was bound by his signature. The court nonetheless found that the Respondent's streamlining exercise terminated the earlier contracts without the notice required under the 2008 contract and to the Claimant's detriment, rendering that termination unlawful and unfair.
Whether the termination was lawful and remedies due
The Respondent's termination of the earlier contracts without due process was unlawful; the Claimant received notice pay (net of his own failure to give notice), 12 months' compensation under Section 41, and service pay for the 7 years of unremitted NSSF contributions
The 2008 contract required 6 months' notice for termination, which the Claimant was not given, and the 2011 contract reduced his terms to his detriment. Section 41 of the Employment Act 2007 was not followed, entitling the Claimant to maximum compensation. Service pay was awarded only for years when NSSF contributions were not remitted; medical allowance was refused as it is a reimbursement.
Whether the Respondent's counterclaim of Kshs.324,975/= was established
The counterclaim failed; the fees paid were part of the Respondent's contractual obligation and any overpayment had been recovered, indeed over-recovered by Kshs.11,473/=
The contract of 2008-2014 obliged the Institute to pay half the Claimant's Strathmore University tuition. Evidence showed overpayments were deducted from his salary through payroll deductions. The court found the Respondent had actually over-recovered Kshs.11,473/= from the Claimant, which was added to the award.
Legal principles established
#- An employee who signs a contract is held to it even if he later alleges duress, unless duress is proved
- Termination of prior contracts without notice or due process is unlawful and unfair under Section 41 of the Employment Act 2007
Court orders
#- 1.Award of Kshs.135,000/= net being 6 months' notice pay (Kshs.270,000/=) less 3 months' notice (Kshs.135,000/=) the Claimant ought to have given
- 2.Compensation of 12 months' salary equivalent to Kshs.540,000/= for unlawful termination under Section 41 of the Employment Act 2007
- 3.Service pay of Kshs.210,000/= being 2/3rds of salary for 7 years of unremitted NSSF contributions
- 4.Declaration that nothing was owed to the Respondent by the Claimant in terms of fees; the Respondent was found to have over-recovered Kshs.11,473/=
- 5.Claimant to be issued with a Certificate of Service
- 6.Respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Haron Njoroge Gacengechi v Administrator Consolata Institute of Philosophy [2015] KEELRC 1278 (KLR)", Case Analysis (2015). Cause No. 2428 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1278/eng@2015-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.