Rachel Kemunto Gesami v Public Service Commission & another [2016] KEELRC 1071 (KLR)
The bottom line
#Kenya's Employment Court ruled the government illegally cut short a public officer's fixed-term contract and awarded her over Kshs 4 million in compensation.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the termination of the claimant's fixed-term contract
The termination was arbitrary, unreasonable and illegal; the respondent breached the contract and engaged legitimate expectations
It was not in dispute that the claimant's contract had not expired. The PSC had on 13 March 2013 resolved to retain her until the expiry of her contract. The letter of 15 April 2013 overruled the PSC without any documented or valid reasons, no notice of intention to terminate was issued and no procedure consistent with the contract, labour laws and natural justice was followed. The court concluded the termination was arbitrary and illegal, breaching the contract and dashing the claimant's legitimate expectation to serve the full fixed term.
Unfairness and discrimination in the manner of termination
The claimant was unfairly and discriminatorily treated, which aggravated her loss and supported a higher compensation award
The court noted that other employees on the list were absorbed into permanent and pensionable positions while the claimant was terminated, despite a colleague in the same category continuing in employment. RW1 conceded the claimant was not treated well. The court found the claimant was literally discriminated against and that the treatment traumatized and demeaned her, factors relevant to the compensation awarded under section 49.
Quantum of compensation
Ten months' salary (Kshs 4,083,700) awarded as compensation under section 49(1)(c) as read with section 49(4) of the Employment Act
The court considered that the claimant had five months remaining on her contract, that she had already been paid one month's salary in lieu of notice and gratuity, and the aggravating circumstances of the arbitrary and discriminatory manner of termination. Balancing these factors, it awarded ten months' salary as statutory compensation.
Legal principles established
#- A decision by the government to overrule a decision of the Public Service Commission to retain an employee to the end of her contract, without notice, reasons or due process, is arbitrary, unreasonable and illegal
- Termination that negates an employee's legitimate expectation to serve the full term of a fixed-term contract constitutes unlawful and unfair termination attracting compensation under section 49 of the Employment Act
Court orders
#- 1.The 1st and 2nd respondents to pay the claimant Kshs 4,083,700 being 10 months' salary for unlawful and unfair termination of employment
- 2.Interest at court rates on the award from date of filing suit till payment in full
- 3.Costs of the suit to the claimant
- 4.Other reliefs sought in the memorandum of claim are not granted
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claimed under section 49(1)(c) as read with section 49(4))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rachel Kemunto Gesami v Public Service Commission & another [2016] KEELRC 1071 (KLR)", Case Analysis (2016). Cause No. 548 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1071/eng@2016-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.