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ELRCPartially AllowedNot stated in judgment· [2016] KEELRC 1147 (KLR)

George Chege Gachie & 6 others v African Institute of Research and Development & 2 others [2016] KEELRC 1147 (KLR)

Employment and Labour Relations Court
27 May 2016
ANAbuodha Jorum Nelson
967 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan employers must give a certificate of service immediately after termination, even if the dismissal is being disputed in court.

What this practically means

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Executive summary

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This was an interlocutory application by notice of motion dated 30th September 2015 in an employment claim before the Employment and Labour Relations Court at Nairobi. The claimants, formerly employed by the respondent institution on two-year contracts, alleged their contracts were unlawfully terminated on grounds of redundancy in August 2015 without consultation or personal notice. By the motion, the 1st claimant sought leave to sign documents and affidavits on behalf of all claimants, and orders compelling the respondents to pay salaries for June, July and August 2015 and pay in lieu of notice, and to issue certificates of service. The respondent filed no replying affidavit but opposed through submissions, arguing the application was an abuse of process and that it had complied with the contracts and section 40 of the Employment Act by issuing a 30-day termination notice dated 1st August 2015, alleging the claimants' own refusal to perform duties caused the redundancy. The court granted leave to the 1st claimant to sign and swear affidavits for the co-claimants provided written authority was filed concurrently with the suit, holding this to be a common practice of convenience. It also ordered issuance of certificates of service, holding that under section 51(1) of the Employment Act a certificate is a matter of law and right and must issue upon termination whether contested or not. However, the court declined to order payment of the three months' salaries and pay in lieu of notice, holding these contested issues require full trial. The suit was set down for trial on those issues.

Key legal issues

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01

Authority of one claimant to sign documents for co-claimants

Holding

Granted, subject to written authority from the other claimants filed with the suit

Reasoning

The court held this is a common practice of convenience where claimants are many but share a common cause of action founded on the same facts. The prayer was considered harmless and was granted with a condition that written authority be filed concurrently with the suit.

p. 2
02

Entitlement to certificate of service upon termination

Holding

Granted; it is a statutory right under section 51(1) of the Employment Act independent of any litigation

Reasoning

Section 51(1) of the Employment Act enjoins an employer to issue a certificate of service upon termination. The court held it must be issued once termination is done, whether contested or not, and does not await the outcome of any dispute. The prayer was harmless and granted.

p. 2
03

Interim payment of salaries for June, July and August 2015 and pay in lieu of notice

Holding

Declined; reserved for trial

Reasoning

Whether the claimants earned the salaries and whether the respondent lawfully terminated their contracts on redundancy are contested factual issues. Such contestations cannot be resolved on affidavit evidence and interlocutory submissions but require full trial with calling of evidence. The prayer was declined and directed to the main trial.

p. 3

Legal principles established

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  • An employer must issue a certificate of service upon termination as a matter of law and right, irrespective of any pending dispute
  • One claimant may sign and swear affidavits on behalf of many claimants with a common cause of action, with their written authority

Court orders

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  1. 1.Leave granted to the 1st claimant to sign and swear affidavits on behalf of the other claimants, provided written authority from the other claimants is filed concurrently with the suit
  2. 2.Respondents ordered to issue the claimants with certificates of service
  3. 3.Prayer for payment of salaries for June, July and August 2015 and pay in lieu of notice referred to full trial of the main suit

Authorities

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Legislation

  • Employment Actsection 18
  • Employment Actsection 40
  • Employment Actsection 51(1)

Cases cited (1)

  • Abraham Gumba v. KEMSA
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Employment and Labour Relations Court Act (not expressly cited in the extract)

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, "George Chege Gachie & 6 others v African Institute of Research and Development & 2 others [2016] KEELRC 1147 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1147/eng@2016-05-27

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