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ELRCPartially AllowedCause No. 2428 of 2012· [2015] KEELRC 1278 (KLR)

Haron Njoroge Gacengechi v Administrator Consolata Institute of Philosophy [2015] KEELRC 1278 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
11 March 2015
2,106 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 2001 and under successive written contracts culminating in an Assistant Librarian contract dated 1st January 2008 running to 1st January 2014, claimed unlawful termination. In February 2011 he was reassigned to the position of Library Technical Assistant under a new one-year contract dated 31st January 2011; he signed it but alleged duress, and on 8th February 2011 he was barred from accessing the workplace, which he contended terminated his services. He sought damages for unlawful termination, six months' notice pay, leave days, a certificate of service, medical allowance, payment for extra work and unpaid salary to 2014, totalling Kshs.1,810,000/=. The Respondent countered that the multiple overlapping contracts were streamlined into one which the Claimant signed voluntarily before leaving, and counterclaimed Kshs.324,975/= in fees allegedly owed. The court framed five issues and held that the 2011 contract subsisted and bound the Claimant despite his duress claim, but that the Respondent terminated the earlier contracts without due process, failing to give the six months' notice required under the 2008 contract, contrary to Section 41 of the Employment Act 2007. The court awarded six months' notice pay (Kshs.270,000/=) reduced by three months' notice the Claimant should have given, 12 months' compensation (Kshs.540,000/=), and service pay of Kshs.210,000/= for seven years of unremitted NSSF contributions, less statutory deductions. The counterclaim failed as fees were contractually the Respondent's obligation and over-recovery of Kshs.11,473/= was found. A certificate of service was ordered and costs awarded to the Claimant. Total award: Kshs.896,473/=.

Key legal issues

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01

Which contract subsisted at the time of termination

Holding

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

Reasoning

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.

p. 4
02

Whether the termination was lawful and remedies due

Holding

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

Reasoning

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.

p. 4
03

Whether the Respondent's counterclaim of Kshs.324,975/= was established

Holding

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/=

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Compensation of 12 months' salary equivalent to Kshs.540,000/= for unlawful termination under Section 41 of the Employment Act 2007
  3. 3.Service pay of Kshs.210,000/= being 2/3rds of salary for 7 years of unremitted NSSF contributions
  4. 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. 5.Claimant to be issued with a Certificate of Service
  6. 6.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Act 2007Section 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (employment dispute)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.