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ELRCDismissedCause No 2132 of 2012· [2015] KEELRC 1512 (KLR)

Peter Kangethe Kamau v Telkom Kenya [2015] KEELRC 1512 (KLR)

Employment and Labour Relations Court of Kenya
26 January 2015
LNLinnet Ndolo
988 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment claim failed because it relied on the wrong law, lacked redundancy evidence, and was never properly pleaded with details.

What this practically means

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Executive summary

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The Claimant, absorbed into the Kenya Posts and Telecommunications Corporation as Driver II on 1st March 1987 and later absorbed by the Respondent in 1998, was dismissed on 19th February 2007 after being implicated in the unauthorised use of a motor vehicle involved in an attempted theft of the Respondent's cables. He claimed two months' salary in lieu of notice, severance pay of Kshs. 1,112,119.50, leave pay of Kshs. 73,431, costs and interest, contending the dismissal was without justifiable cause and without a hearing. The Respondent maintained the termination was lawful and in accordance with contractual and regulatory terms, the Claimant having been invited to show cause and paid one month's salary in lieu of notice. The court framed three issues: the applicable employment law, entitlement to notice pay, and entitlement to severance and leave pay. It held that since the cause of action accrued on 19th February 2007, before the Employment Act, 2007 commenced on 2nd June 2008, the repealed Employment Act (Cap 226) and the employment contract governed the claim, following Jeremiah Ojwang Ojak and Agnes Murugi Mwangi. A claim for damages for unfair termination raised in submissions was dismissed as unpleaded. The notice claim failed as one month's pay had been paid and no provision supported more; severance failed absent redundancy; and leave pay failed for lack of particulars, applying Bonham Carter v Hyde Park Hotel. The entire claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Applicable employment law regime

Holding

The Employment Act, 2007 does not apply; the repealed Employment Act (Cap 226) and the employment contract govern the claim

Reasoning

The cause of action accrued on 19th February 2007, before the Employment Act, 2007 commenced on 2nd June 2008. Following established Court of authority (Ojak and Mwangi), pre-2008 causes of action are governed by the repealed Act. The court therefore examined the claim against the contract and Cap 226.

p. 2
02

Notice pay

Holding

The claim for a further 2 months' salary in lieu of notice fails

Reasoning

The Respondent paid one month's salary in lieu of notice at termination, which the Claimant did not deny. The contractual clause relied on required 3 months' notice or one month's pay in lieu, and neither that clause nor any law supported a further 2 months' pay.

p. 2
03

Severance pay and leave pay

Holding

Both claims fail

Reasoning

Severance pay under both the repealed and current Acts is payable only on redundancy, and there was no evidence the Claimant was declared redundant. The leave pay claim lacked particulars of days or rate, and unparticularised figures serve no purpose in litigation.

p. 3
04

Unpleaded claim for damages for unfair termination

Holding

Dismissed as unpleaded and unsubstantiated

Reasoning

Although raised in written submissions, the claim for damages for unfair termination was never pleaded in the Memorandum of Claim nor substantiated, so the court found no basis for it and dismissed it.

p. 2

Legal principles established

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  • Causes of action accruing before 2nd June 2008 are governed by the repealed Employment Act (Cap 226), not the Employment Act, 2007
  • Severance pay is payable only to employees declared redundant
  • Parties seeking relief must provide particulars and details of their claims; unparticularised figures serve no purpose

Court orders

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  1. 1.The Claimant's entire claim is dismissed
  2. 2.Damages for unfair termination, not having been pleaded or substantiated, are dismissed
  3. 3.The claim for 2 months' salary in lieu of notice is dismissed
  4. 4.The claim for severance pay is dismissed
  5. 5.The claim for leave pay is dismissed
  6. 6.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007General (commencement date 2nd June 2008)
  • Employment Act (Cap 226) (repealed)General

Cases cited (3)

  • Jeremiah Ojwang Ojak Vs Central Bank of Kenya
    [2012] eKLR
  • Agnes Murugi Mwangi Vs Barclays Bank of Kenya Limited
    [2013] eKLR
  • Bonham Carter Vs. Hyde Park Hotel
    (1948) 64 T.L.R 177
On appeal from
Chief Magistrate's Court
Jurisdiction invoked
Transferred from the Chief Magistrate's Court to the Employment and Labour Relations Court in October 2012 (no constitutional/statutory provision expressly cited)

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, "Peter Kangethe Kamau v Telkom Kenya [2015] KEELRC 1512 (KLR)", Case Analysis (2015). Cause No 2132 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1512/eng@2015-01-26

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