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ELRCPartially AllowedCause No 2250 of 2012· [2015] KEELRC 1440 (KLR)

Nahashon Cheruiyot Ngeno v Strengthening of Mathematics & Science Education Project & another [2015] KEELRC 1440 (KLR)

Employment and Labour Relations Court
18 February 2015
LNLinnet NdoloHWHellen Wasilwa
1,745 words in judgment
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The bottom line

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Kenya's Employment Court ruled that a secondment host cannot fire a seconded employee; only the original employer can, and it pays when things go wrong.

What this practically means

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Executive summary

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The Claimant, a driver, sued the Strengthening of Mathematics & Science Education Project (1st Respondent) and CEMASTEA (2nd Respondent) for unlawful and unfair termination of employment. He was employed by the 2nd Respondent on a three-year contract pegged to the SMASE project period ending 31st December 2013 and seconded to work under the supervision of the 1st Respondent, who paid his salary while the 2nd Respondent was to pay gratuity. On 2nd May 2012 the 1st Respondent's advocates terminated his employment following disciplinary allegations of misconduct and insubordination. The Respondents filed defences contending there was no employment relationship between the Claimant and the 1st Respondent and, for the 2nd Respondent, that the Claimant effectively terminated the contract by desertion. The Respondents called no witnesses at trial. The court framed three issues: the existence of the employment relationship, the lawfulness and fairness of the termination, and entitlement to relief. Applying the Delhi High Court decision in Centrica India Offshore, the court held that in secondment arrangements the traditional control tests are inadequate and the parties' intention governs; the 2nd Respondent remained the primary employer. The 1st Respondent had no authority to terminate a seconded employee's employment, making the termination unprocedural and unlawful, and the 2nd Respondent was vicariously liable as principal. The court awarded Kshs. 115,980 being six months' salary against the 2nd Respondent, directed payment of gratuity for the period served within 30 days with amounts already paid to be discounted, dismissed the underpayment claim as unproved, and awarded costs to the Claimant. Judgment signed by Linnet Ndolo, Judge, on 16th February 2015 and delivered in open court by Hellen Wasilwa, Judge, on 18th February 2015.

Key legal issues

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01

Whether the 1st Respondent, as secondment employer, was the Claimant's employer

Holding

The 2nd Respondent (CEMASTEA) was the primary employer; the 1st Respondent only supervised and paid salary under a secondment arrangement

Reasoning

The appointment letter showed the 2nd Respondent recruited the Claimant and seconded him to the 1st Respondent for a specified three-year period. The court held that in secondment contexts the control tests are inadequate and the parties' intention as shown by conduct and documentation governs. The letter showed the 1st Respondent would pay salary while the 2nd Respondent would pay gratuity, indicating no transfer of the primary employment responsibility.

p. 3
02

Whether the termination by the 1st Respondent's advocates was lawful and procedural

Holding

The termination was unprocedural and unlawful because the 1st Respondent had no mandate to terminate a seconded employee's employment

Reasoning

Having found the 2nd Respondent to be the primary employer, the court held the 1st Respondent's advocates' letter of 2nd May 2012 terminating employment was ineffective and wrongful. The proper course would have been to request recall of the Claimant. By seconding the Claimant, the 2nd Respondent created a principal/agency relationship and was vicariously liable for the wrongful termination. The 2nd Respondent's claim that the Claimant self-terminated by desertion was not sustained.

p. 4
03

Whether the Claimant was entitled to the reliefs sought

Holding

Compensation of six months' salary and gratuity awarded; underpayment claim dismissed

Reasoning

The court awarded Kshs. 115,980, equivalent of six months' salary, taking into account the Claimant's length of service and the 2nd Respondent's conduct in the termination. Gratuity for the period served was to be calculated and paid within 30 days, subject to discount of amounts already paid. The underpayment claim failed for want of proof.

p. 4

Legal principles established

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  • In secondment arrangements, the traditional tests of control and supervision are not adequate; the intention of the parties as evidenced by conduct and documentation determines the primary employer
  • An employee seconded for a specified period remains an employee of the primary employer
  • A secondment employer has no authority to terminate the employment of a seconded employee absent express termination of the primary contract
  • The primary employer is vicariously liable for the secondment employer's wrongful termination, the secondment creating a principal/agency relationship

Court orders

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  1. 1.Award of Kshs. 115,980 against the 2nd Respondent being six months' salary in compensation for unlawful termination of employment
  2. 2.2nd Respondent directed to calculate and pay the Claimant gratuity for the period served within 30 days of the award, with amounts already paid to be discounted
  3. 3.Claim for underpayment dismissed
  4. 4.Costs of the case awarded to the Claimant

Authorities

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Legislation

  • Employment ActNot specified in judgment

Cases cited (1)

  • Centrica India Offshore PVT Ltd Vs CIT
    W.P.(C) No. 6807/2012 (Del)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim for unlawful and unfair termination of employment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nahashon Cheruiyot Ngeno v Strengthening of Mathematics & Science Education Project & another [2015] KEELRC 1440 (KLR)", Case Analysis (2015). Cause No 2250 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1440/eng@2015-02-18

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