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ELRCDismissedCause No 160 of 2011· [2016] KEELRC 1144 (KLR)

Reginald Njagi Nyaga v French Embassy-Nairobi [2016] KEELRC 1144 (KLR)

Employment and Labour Relations Court of Kenya
31 May 2016
LNLinnet Ndolo
935 words in judgment
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The bottom line

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A Kenyan court dismissed an embassy worker's claim because the redundancy was handled lawfully under the old law and all dues were paid.

What this practically means

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Executive summary

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This first-instance award of the Employment and Labour Relations Court at Nairobi, delivered by Linnet Ndolo J on 31st May 2016 following a retrial directed by the Principal Judge after the claim had earlier been dismissed by D.K Njagi Marete J, determined a claim by Reginald Njagi Nyaga against the French Embassy-Nairobi for unlawful termination of employment. The Claimant, employed from 1987 as Film Technician and Administration Manager, alleged his April 2005 termination was malicious and coerced, claiming notice pay, leave pay, house allowance, salary from 2005 to 2011, service pay, damages for wrongful dismissal and 12 months' compensation. The court framed three issues: jurisdiction, lawfulness of the termination, and entitlement to remedies. On jurisdiction, it held that the cause of action arising in 2005 predates the Employment Act 2007, so the six-year period under the Limitation of Actions Act applied, rendering the 2011 claim timely. Diplomatic immunity failed because the contract showed no intention to exclude the court's jurisdiction, and by relying on Kenyan employment law to compute final dues the Respondent waived any immunity. On the merits, the court found the termination was a redundancy governed by the repealed Employment Act (Cap 226) and that the Respondent fully complied with Section 16A. The Claimant received due notice and acknowledged payment of all dues. All heads of claim failed; the entire claim was dismissed, with each party bearing their own costs.

Key legal issues

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01

Jurisdiction over a foreign embassy as employer and limitation

Holding

The court had jurisdiction; the claim was not time barred and no immunity applied.

Reasoning

The cause of action arose in 2005, before the Employment Act 2007, so the six-year period under the Limitation of Actions Act applied and the 2011 claim was timely. The employment contract contained no exclusion of the court's jurisdiction. Moreover, the Respondent used Kenyan employment law to tabulate final dues, waiving any immunity claim. The claim was therefore properly before the court.

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02

Lawfulness and fairness of the termination

Holding

The termination by way of redundancy complied with the law applicable at the time (Section 16A, Cap 226) and was lawful and fair.

Reasoning

Since the claim fell outside the Employment Act 2007, the repealed Employment Act (Cap 226) applied. The reason for termination was redundancy, and Section 16A of Cap 226 set out the compliance conditions. On the evidence, the Respondent gave the Claimant one month's written notice and paid all dues of Kshs. 226,950.65, fully complying with the applicable law. Claims for wrongful dismissal damages and compensation therefore failed.

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03

Entitlement to remedies

Holding

None of the remedies sought were granted; the entire claim was dismissed.

Reasoning

Notice pay failed because due notice was given. Service pay failed because the Claimant contributed to NSSF. Leave pay and house allowance claims were not proved. Compensation, damages and salary for 2005-2011 failed because the termination was a lawful redundancy. The claim was dismissed with each party bearing their own costs.

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Legal principles established

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  • Where a cause of action arose before the Employment Act 2007, the applicable limitation law is the Limitation of Actions Act, which sets a six-year limitation period
  • A party who relies on Kenyan employment law to compute final dues waives the right to claim immunity from the court's jurisdiction
  • Redundancy terminations governed by the repealed Employment Act (Cap 226) required compliance with Section 16A conditions

Court orders

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  1. 1.The Claimant's entire claim is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Vienna Convention on Diplomatic Relations, 1961Article 31(1)
  • Employment Act, 2007Section 90
  • Limitation of Actions Act
  • Employment Act (repealed) (Cap 226)Section 16A
Jurisdiction invoked
Employment and labour relations jurisdiction; claim filed under the court's employment jurisdiction (claim arises pre-Employment Act 2007, governed by repealed Employment Act Cap 226 and Limitation of Actions Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Reginald Njagi Nyaga v French Embassy-Nairobi [2016] KEELRC 1144 (KLR)", Case Analysis (2016). Cause No 160 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1144/eng@2016-05-31

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