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ELRCPartially AllowedPetition No. 15 of 2015

Mutemi Musyoka v Public Service Commission of Kenya & Another [2016] KEELRC 428 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
11 October 2016
HWHellen S. Wasilwa
4,471 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that five years of continuous work cannot be called 'temporary' employment, and firing without a letter or proper process was unfair.

What this practically means

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Executive summary

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The Petitioner, employed as Support Staff in Job Group 'A' from January 2008, first under the Ministry of Home Affairs and then with the Public Service Commission on written temporary terms terminable by one month's notice, served continuously for over five years until March 2013 when his salary and allowances were withheld and he was verbally informed his services were no longer required following the abolition of the office of the then Vice President. He petitioned for declarations that his constitutional rights to dignity, fair labour practices, fair administrative action and fair hearing were violated, reinstatement on permanent and pensionable terms, unpaid leave, and general, aggravated and exemplary damages of up to Kshs. 20,000,000. The Respondents contended his employment was temporary, tied to an office slated for abolition, that he was cleared and fully paid, and that redundancy was a valid ground of termination. The Petitioner relied on written submissions; the Respondents filed none and did not attend. Justice Wasilwa held that the appointment, lacking any specific need or fixed duration, could not remain temporary after five years of continuous service, and that on abolition of his office the Respondents were obliged either to redeploy him or to follow the Section 40 redundancy procedure. No termination letter was served; termination was verbal. The court declared the termination unfair and unjustified and awarded Kshs. 320,430 comprising twelve months' salary for unlawful termination, one month's salary in lieu of notice, severance pay at fifteen days' salary per year of service, and one month's salary in lieu of untaken leave for 2012/2013, less statutory deductions, with costs and interest. The broader constitutional declarations, reinstatement and exemplary damages claims were not granted as such.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Petitioner's temporary appointment converted to permanent and pensionable employment after five years of continuous service
  2. 2.Whether the manner of termination of the Petitioner's services was lawful, fair and procedurally proper
  3. 3.Whether the Respondents violated the Petitioner's constitutional rights as alleged
  4. 4.What remedies, if any, the Petitioner is entitled to

Key legal issues

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01

Nature of the Petitioner's appointment - temporary or permanent by conduct/duration

Holding

Although styled temporary, the appointment lacked a specific need or fixed duration and, after five years' continuous service, could not be sustained as temporary

Reasoning

The court consulted Black's Law Dictionary's definition of temporary employment as work for a specific need or fixed duration agreed beforehand. The appointment letters carried no duration or specific need. Neither the Public Service Regulations 2006 nor the Public Service Act 2012 define temporary appointments. Section 9 of the Employment Act contemplates that work exceeding three months cannot remain temporary, so five years of continuous service defeated the temporary label.

p. 8
02

Lawfulness of the termination process

Holding

The termination was unfair and unjustified because no termination letter was served and no due process or Section 40 redundancy procedure was followed

Reasoning

The court found no termination letter was served; the Petitioner was only verbally told his services were no longer required after abolition of the office of the Vice President. The Clearance Certificate suggested a transfer rather than termination and did not indicate any receiving ministry. The Respondents neither redeployed him nor declared him redundant in compliance with the conditions in Section 40 of the Employment Act, including notice, payment of leave and severance pay.

p. 8
03

Whether constitutional rights were violated and entitlement to constitutional/exemplary damages

Holding

The court declared the termination unfair but awarded employment-law remedies rather than the broad constitutional and exemplary damages claimed

Reasoning

Although the Petition invoked Articles 28, 29, 41, 47 and related provisions and sought declarations and Kshs. 20,000,000 in general and exemplary damages, the court grounded its award in the Employment Act: 12 months' salary for unlawful termination, one month in lieu of notice, severance pay and leave. No separate findings or awards were made on the individual constitutional violations, discrimination, or aggravated and exemplary damages.

p. 9

Legal principles established

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  • An appointment described as temporary cannot remain temporary where the employee serves continuously for a period exceeding three months; long continuous service converts the nature of the engagement
  • An employee in continuous long service can only be terminated through due process or through a lawful redundancy procedure under Section 40 of the Employment Act

Court orders

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  1. 1.Award of 12 months' salary as damages for unlawful termination (Kshs. 233,040)
  2. 2.Award of 1 month's salary in lieu of notice (Kshs. 19,420)
  3. 3.Award of severance pay equivalent to 15 days' salary for each year of service (Kshs. 48,550)
  4. 4.Award of 1 month's salary in lieu of leave not taken in year 2012/2013 (Kshs. 19,420)
  5. 5.Total award of Kshs. 320,430 less statutory deductions
  6. 6.Costs of the suit to the Petitioner
  7. 7.Interest on the awarded amount at court rates from the date of judgment
  8. 8.Declaration that the Petitioner's termination was unfair and unjustified

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HW
majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 28, 29, 41, 43, 45, 47, 75 and 236 of the Constitution of Kenya 2010 (constitutional petition on labour rights)

Relief refused

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Declaration that the Petitioner is entitled to be employed by the 1st Respondent on permanent and pensionable terms; reinstatement and deployment; payment of salary from March 2013 until reinstatement; leave accrued for 5 years (Kshs. 103,740); Kshs. 20,000,000 general and exemplary damages

The court found the termination unfair and awarded compensation instead, but did not grant reinstatement, permanent employment, or the constitutional/general and exemplary damages sought

p. 9

Costs

Costs of this suit awarded to the Petitioner.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I have looked at the appointments envisaged in the Public Service of Kenya and there is provision for such an appointment. Under the Public Service Regulations 2006, however it is not defined.
p. 8temporary appointment not defined in public service instruments
It is envisaged here that an appointment for work exceeding 3 months cannot remain of such a temporary nature. The Petitioner worked for 5 years and the temporariness of this appointment cannot be sustained.
p. 8conversion of temporary employment by duration
What the Respondent should have done if indeed the work he was doing was abolished, they should have either redeployed him in the public service or declare him redundant.
p. 8obligation on abolition of office
I find his termination unfair and unjustified and I declare it so.
p. 9declaration of unfair termination
1. 12 months salary as damages for unlawful termination = 12 x 19,420/= 233,040/=. 2. 1 month salary in lieu of notice = 19,420/=. 3. Severance pay equivalent to 15 days salary for each year of service = ½ x 19,420 x 5 = 48,550/=. 4. 1 month salary in lieu of leave not taken in year 2012/2013 = 19,420/= Total awarded 320, 430/= Les statutory deductions 5. Costs of this suit. 6. The above amount to attract interest at Court rates with effect from the date of this judgement.
p. 9final orders and quantum

Issues in the judgment

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minor

The judgment is internally inconsistent on the date the Petitioner applied for the job: the facts section states he was employed from 31st January 2008 and applied on or about 22nd January 2008, while the employment history finds he applied on 31.7.2008 and received the offer letter on 11th March 2008

minor

The Respondents' affidavit misdates the payment voucher, referring to 'payment voucher dated 11th April 214'

minor

Petitioner's cited case Shanka Sakali vs. DHL Global forwarding (k) Ltd is dated (2002) eKLR, an apparent error for 2012 given it cites Article 47 of the 2010 Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Mutemi Musyoka v Public Service Commission of Kenya & Another [2016] KEELRC 428 (KLR)", Case Analysis (2016). Petition No. 15 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/428/eng@2016-10-11

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