Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 72 of 2015· [2016] KEELRC 1438 (KLR)

Simon Mukulo v County Government of Kakamega (Cause 72 of 2015) [2016] KEELRC 1438 (KLR)

Employment & Labour Relations Court
10 March 2016
MOMaureen Onyango
2,307 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The claimant was employed as Ward Administrator, Shirugu-Mugai Ward by the County Government of Kakamega by letter dated 4th November 2014, which he signed in acceptance on 5th November 2014, the same day he resigned from his previous employment with Jesuit Refugee Services. Two days later, on 7th November 2014, the respondent re-advertised the position in the Standard Newspaper, and fresh interviews were scheduled for 5th March 2015 without the claimant ever being allowed to report for duty. He sued seeking a declaration that his termination was unlawful, terminal dues, general damages, or alternatively reinstatement, plus costs. The respondent denied any employment relationship, contending the appointment was null and void for want of a named ward, a wrong job group ('N' instead of advertised 'M'), failure to submit statutory forms and report on duty, and lack of capacity while still employed elsewhere; it also raised non-joinder of the County Public Service Board. The court held that an employment relationship was created upon acceptance of the appointment letter; the alleged defects did not vitiate the contract since the claimant did not appoint himself, and an error can be rectified. However, the re-advertisement before the two-month reporting window expired was held to be frustration of the contract after acceptance, not unfair termination, rendering sections 41, 42(4) and 47(6) of the Employment Act inapplicable. Terminal dues and reinstatement were refused, but the claimant was awarded damages for breach of contract equivalent to six months' gross salary (Shs.517,140), having lost his prior job in legitimate expectation of employment. The non-joinder of the Public Service Board was held a curable technicality. The respondent was ordered to pay the award and the claimant's costs.

Key legal issues

#
01

Existence of an employment relationship despite alleged defects in the appointment

Holding

The employment relationship was created upon the Claimant's acceptance of the appointment letter; the alleged defects (ward not named, job group 'N' instead of 'M', non-resignation from prior job, failure to report) did not vitiate the contract.

Reasoning

The court rejected each of the Respondent's invalidity grounds: there was no requirement that the claimant resign before appointment; deployment within the sub-county was the Sub-County Administrator's responsibility; the job group error was the employer's own and a mistake does not vitiate a contract since it can be rectified; and the re-advertisement occurred before the two-month reporting window in the letter lapsed, so no laches or lapse arose.

p. 4
02

Whether the re-advertisement constituted unfair termination

Holding

The re-advertisement was not a termination within sections 41, 42(4) and 47(6) of the Employment Act but a frustration/withdrawal of the contract after acceptance.

Reasoning

The claimant was never given an opportunity to report for duty because the position was re-advertised only two days after acceptance and before the two-month reporting period expired. The court characterized this as frustration of the contract after acceptance, making it impossible for the claimant to report, and therefore held that the unfair termination provisions of the Employment Act were inapplicable.

p. 4
03

Remedies - damages for breach of contract

Holding

The claimant was awarded damages equivalent to six months' gross salary (Shs.517,140), having lost his previous job and held a legitimate expectation of the salary in the appointment letter.

Reasoning

Because there was no termination, terminal dues and reinstatement were refused. However, the claimant proved loss: he resigned from Jesuit Refugee Services on the strength of the appointment and had a legitimate expectation of earning Kshs.86,190 gross per month had he complied with his part of the contract. The court awarded six months' gross salary as damages for breach of contract by the Respondent.

p. 5
04

Non-joinder of the County Public Service Board

Holding

The non-joinder of the County Public Service Board did not defeat the claim against the County Government.

Reasoning

The court reasoned that under Article 176 of the Constitution the County Government comprises the County Assembly and County Executive, and the Public Service Board is part of the County Government. Failure to name the organ charged with recruitment is a curable technicality; ultimately the County Executive is liable to pay any award, and the Respondent suffered no prejudice.

p. 5

Legal principles established

#
  • An employment relationship is created upon the employee's acceptance of a letter of appointment by signing it.
  • A suit against a county government is not defeated by failure to name an organ within the county charged with recruitment, as that is a curable technicality.

Court orders

#
  1. 1.Judgment entered for the Claimant against the Respondent in the sum of Shs.517,140
  2. 2.The Respondent to pay the Claimant's costs

Authorities

#

Legislation

  • Employment Actsections 41, 42(4), 47(6)
  • County Governments Actsection 75
  • Constitution of KenyaArticle 176
Jurisdiction invoked
Article 176 of the Constitution; Employment Act; County Governments Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Simon Mukulo v County Government of Kakamega (Cause 72 of 2015) [2016] KEELRC 1438 (KLR)", Case Analysis (2016). Cause No 72 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1438/eng@2016-03-10

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