Luka Kimaiyo Chepkonga v Kenya Power & Lighting Co. Limited [2016] KEELRC 1569 (KLR)
The bottom line
#Kenya's Employment Court dismissed a former Kenya Power employee's claim, ruling his 2007 termination was lawful under the old contract-based rules that existed before June 2008.
What this practically means
#Executive summary
#Key legal issues
#Limitation period applicable to a pre-2008 employment claim
Section 90 of the Employment Act, 2007 is inapplicable; the claim, being contractual, is governed by section 4 of the Limitation of Actions Act (6 years), so a claim filed in 2010 for a November 2007 termination was not time barred.
The cause of action accrued on 2 November 2007 when the Claimant received the termination letter, before the Employment Act, 2007 took effect on 2 June 2008. The applicable statute of general application was the Limitation of Actions Act, with a 6-year period for contract claims expiring 1 November 2013. The Claimant filed in 2010, within time.
Lawfulness of the termination under the repealed Employment Act, cap 226
The termination was lawful because clause 13 of the employment agreement permitted termination by either party on one month's notice or one month's pay in lieu of notice, which was offered and paid.
Under the pre-2008 framework employees had no statutory protection against termination or security of tenure; the contract and common law governed. Clause 13 of the agreement allowed termination on one month's notice or pay in lieu. Since one month's pay in lieu of notice was offered and paid, the termination was contractually anchored and lawful.
Right to a hearing before dismissal under the old legal regime
There was no statutory or common law right to a hearing before termination of an ordinary contract of employment under the repealed Act, so the Claimant's natural justice attack failed.
The Claimant relied on Gedo Abdullah Muhamed v Commissioner of Police & Attorney General, but the court held that decision does not mirror the established line of authorities (Kabute, Rift Valley Textiles, Whitton) dealing with the pre-2008 framework. Those authorities confirm the absence of a right to a hearing for ordinary contracts of service not underpinned by legislation.
Entitlement to special damages and prospective future earnings
No award: special damages were not pleaded with particularity or quantified, and prospective future earnings are not attainable in law for premature termination.
The Claimant sought Kshs 12,894,000 as income to retirement, citing Beatrice Achieng Osir and section 12(3) of the ELRC Act. The court, relying on its own prior decisions and Bank of Uganda v Tinkamanyire, reaffirmed that compensation for the remainder of a contract to retirement is unattainable in law, and special damages were never particularised or proved.
Legal principles established
#- Section 90 of the Employment Act, 2007 does not apply to causes of action accruing before the Act came into effect on 2 June 2008; the Limitation of Actions Act (6 years for contract) governs such claims.
- Under the repealed Employment Act, cap 226 there was no statutory or common law right to a hearing before termination of an ordinary contract of employment.
- A termination effected in accordance with a contractual clause permitting termination on payment of one month's pay in lieu of notice is lawful.
Court orders
#- 1.The Cause is dismissed with no order as to costs
- Jurisdiction invoked
- Jurisdiction over employment and labour relations causes following transfer from the High Court; section 87 of the Employment Act, 2007 identified as the source of the claim's jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Luka Kimaiyo Chepkonga v Kenya Power & Lighting Co. Limited [2016] KEELRC 1569 (KLR)", Case Analysis (2016). Cause No 44 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1569/eng@2016-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.