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ELRCPartially AllowedPetition No. 14 of 2015

Peter Mwendwa Kaliki v Public Service Commission of Kenya & another [2016] KEELRC 447 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
11 October 2016
3,951 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that 'temporary' government jobs become permanent after three months, so employers must follow formal redundancy procedures before terminating such workers.

What this practically means

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Executive summary

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The Petitioner, employed by the Public Service Commission as a Support Staff/Gardener in the office of the then Vice President with effect from 1st April 2009 on stated temporary terms, alleged that in March 2013 his salary and allowances were withheld and he was verbally informed his services were no longer required following the abolition of the office. He petitioned for declarations that his rights to dignity, freedom from torture and degrading treatment, fair labour practices, fair administrative action and fair hearing had been violated, and sought reinstatement, permanency declarations, accrued leave, and general and exemplary damages of up to Kshs. 20,000,000. The Respondents maintained he was a temporary employee whose office lapsed, that his dues were paid upon clearance, and that redundancy was a valid ground of termination. The Court held that the appointment, not being for a specific need or fixed duration, ceased to be temporary after three months, having run for five years. The employer should have redeployed him or declared him redundant in compliance with Section 40 of the Employment Act. The verbal termination without notice or hearing was administratively unfair and constituted inhumane and degrading treatment. The Court declared the termination unfair and unjustified and awarded 12 months' salary as damages, one month's pay in lieu of notice, severance pay at 15 days' salary per year of service, and one month's salary for untaken leave, totalling Kshs. 342,342 less statutory deductions, with costs and interest. The broader constitutional and exemplary damages claims and reinstatement 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 employment was temporary or had converted to permanent and pensionable terms by virtue of Section 37 of the Employment Act 2007
  2. 2.Whether the termination of the Petitioner's employment was fair, lawful and in accordance with Sections 35, 40 and 41 of the Employment Act 2007
  3. 3.Whether the Respondents violated the Petitioner's constitutional rights including fair labour practices, fair administrative action, human dignity and freedom from inhumane and degrading treatment
  4. 4.What remedies, if any, the Petitioner is entitled to

Key legal issues

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01

Status of the Petitioner's employment

Holding

Although appointed on 'temporary terms', the appointment was not for a specific need or fixed duration and having served 5 years it ceased to be temporary after 3 months

Reasoning

The Court applied Black's Law Dictionary definition of temporary employment as work for a specific need or fixed duration. The Petitioner's letter did not assign specific duties for a particular period. Section 9 of the Employment Act contemplates contracts of three months or more being in writing. Serving five years, the appointment could not remain temporary and the employer was obliged to redeploy him or declare him redundant.

p. 8
02

Fairness of the termination

Holding

The verbal termination without notice or hearing, and without compliance with Section 40 redundancy procedure, was unfair, unjustified and administratively unfair

Reasoning

The Petitioner was never given a termination letter but was verbally terminated. The Respondents relied on redundancy but did not comply with the conditions in Section 40 of the Employment Act, including notification of the labour officer, payment of leave in cash, one month's notice or wages in lieu and severance pay at 15 days per completed year. Due process and fair administrative action under Article 47 were not followed.

p. 8
03

Remedies for unfair termination

Holding

The Petitioner was awarded the equivalent of 12 months' salary as damages, one month's notice pay, severance pay for 5 years and leave for one year, less statutory deductions

Reasoning

Having found the termination unfair and unjustified, the Court exercised its discretion to award compensation of 12 months' salary at the dismissal rate of Kshs. 20,748, notice pay, severance pay computed at 15 days' salary for each of the 5 completed years of service, and one month's salary in lieu of untaken leave for 2012/2013, plus costs and interest. The broader constitutional damages and the 20 million shillings claim were not granted.

p. 8

Legal principles established

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  • An appointment described as temporary that exceeds three months ceases to be temporary and the employee cannot be verbally terminated; the employer must redeploy or declare redundancy.
  • Termination on account of redundancy must strictly comply with the conditions in Section 40 of the Employment Act, including written notice, payment in lieu of notice and severance pay.

Court orders

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  1. 1.Declaration that the Petitioner's termination was unfair and unjustified
  2. 2.Award of 12 months salary as damages for unfair and unjustified termination (Kshs. 248,976)
  3. 3.Award of 1 month salary in lieu of notice (Kshs. 20,748)
  4. 4.Severance pay equivalent to 15 days salary for each year of service (Kshs. 51,870)
  5. 5.1 month salary in lieu of leave not taken in year 2012/2013 (Kshs. 20,748)
  6. 6.Total award of Kshs. 342,342 less statutory deductions
  7. 7.Costs of the suit to the Petitioner
  8. 8.Interest on the award at court rates from the date of judgment

The bench

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

Wrote the judgment

Jurisdiction invoked
Articles 22, 23, 41, 47 and 236 of the Constitution of Kenya 2010 (constitutional petition on fair labour practices and fair administrative action filed in the Employment and Labour Relations Court)

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, Kshs. 103,740 leave accrued for 5 years, damages for loss of salary/allowances/benefits, Kshs. 20,000,000 general and exemplary damages

The Court instead awarded compensation for unfair termination, notice, severance and one month's leave, treating the remedy as compensation rather than the full reliefs sought; the appointment letter showed temporary terms and the appropriate course was redeployment or redundancy

p. 8

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.

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 this appointment ceased to be temporal after 3 months.
p. 8conversion of temporary employment
What the Respondent should have done if indeed the work/office he was working in was abolished was to redeploy him in the public service or declare him redundant.
p. 8employer's obligations on abolition of office
He was never given any termination letter but was verbally terminated which subjected him to inhumane and degrading treatment. The action taken by the Respondent was administratively unfair.
p. 8fair administrative action and termination
It is evident that the Petitioner was not subjected to the process listed above. I find his termination unfair and unjustified and I declare it so.
p. 8Section 40 redundancy conditions
The above amount to attract interest at Court rates with effect from the date of this judgement.
p. 9final orders - interest

Issues in the judgment

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minor

Judgment cites Section 9 of the Employment Act on contract duration but the petitioner's submissions relied on Section 37 for conversion of casual/temporary employment; the Court's conversion reasoning blends the two provisions

minor

Citation of Shanka Sakali case given as (2002) eKLR, likely a typographical error for 2012

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 Mwendwa Kaliki v Public Service Commission of Kenya & another [2016] KEELRC 447 (KLR)", Case Analysis (2016). Petition No. 14 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/447/eng@2016-10-11

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