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ELRCPartially AllowedNot stated in the judgment· [2018] KEELRC 1835 (KLR)

Nyaga N. Kairichi v County Government of Embu [2018] KEELRC 1835 (KLR)

Employment and Labour Relations Court
10 May 2018
NMNzioki wa Makau
1,665 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that dismissing an employee by text message without a hearing was unfair, awarding pay and damages even without a formal employment contract.

What this practically means

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Executive summary

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The Claimant, formerly a revenue collector with the defunct Mbeere County Council from 2009, sued the County Government of Embu for wrongful and unfair dismissal, terminal dues and damages. He pleaded that on transfer of services to the county government he became its employee; that by Section 37 of the Employment Act his long service converted him to permanent status; and that on 9th September 2016 he was dismissed by text message demanding Kshs. 25,000/- without notice, hearing or prior warning. He sought notice pay, seven years' leave and house allowance, service pay per CBA, twelve months' compensation under Section 49 and punitive damages. The Respondent's defence denied absorbing casual employees and denied liability; it did not appear at the hearing. The Respondent's reply letter to the demand described the Claimant as suspended for misappropriating public funds pending a disciplinary hearing. The court held that the letter confirmed employment, rendering the status question moot, and that despite lack of formalisation the Claimant was entitled to Section 37 protections. The claimed suspension was found to be in substance a termination by text message, and no Section 41 hearing was ever offered, so the dismissal was unlawful, unprocedural and unfair. Remedies were tailored: leave and house allowance confined to three years by the Section 90 limitation; service pay barred by Section 35 as the Claimant contributed to NSSF; and compensation fixed at four months rather than the twelve sought. The court awarded notice pay, three years' leave and house allowance arrears, four months' compensation, costs, interest and a certificate of service.

Key legal issues

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01

Employment status of the Claimant

Holding

The Claimant was an employee of the Respondent entitled to Section 37 conversion benefits despite lack of formalisation

Reasoning

The Respondent's letter of 13th October 2017 implicitly recognised the Claimant as its employee by referring to his suspension from duty. He was paid monthly as evidenced by bank statements, and although the engagement was never formalised, Section 37 of the Employment Act entitled him to the protections of a regular employee.

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02

Whether the dismissal was lawful, procedural and fair

Holding

The dismissal was unlawful, unprocedural and unfair; the text message was in effect a termination, and no hearing under Section 41 was ever granted

Reasoning

The Respondent claimed the Claimant was merely suspended pending a disciplinary hearing, but no suspension letter issued and no hearing invitation followed after September 2016. The court found the Claimant honest and concluded he was never given an opportunity under Section 41 to respond to the misappropriation allegations.

p. 3
03

Entitlement to remedies claimed

Holding

Claimant awarded notice pay, 3 years' leave and house allowance arrears, 4 months' compensation for unfair dismissal, costs, interest and a certificate of service

Reasoning

The court granted the core terminal dues but applied the Section 90 limitation to confine leave and house allowance claims to three years, and Section 35 to bar service pay because the Claimant contributed to NSSF. Compensation for unfair dismissal was fixed at four months' salary rather than the twelve months sought.

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Legal principles established

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  • An employee whose engagement was not formalised but who was paid monthly is entitled to the benefit of Section 37 of the Employment Act
  • Summary dismissal without a hearing violates Section 41 of the Employment Act and renders the dismissal unlawful, unprocedural and unfair
  • Recovery of leave and house allowance arrears is limited to three years preceding dismissal under Section 90 of the Employment Act
  • Section 35 bars payment of service pay to NSSF contributors

Court orders

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  1. 1.One month salary in lieu of notice Kshs. 16,344.95
  2. 2.Payment of Kshs. 49,034.85 being leave earned but not taken for 3 years
  3. 3.Arrears on house allowance for 3 years Kshs. 76,750.20
  4. 4.Compensation for unfair dismissal for 4 months Kshs. 65,379.80
  5. 5.Costs of the suit
  6. 6.Interest at court rates on items i), ii), iii) from date of filing suit till payment in full
  7. 7.Interest at court rates on iv) above from date of judgment till payment in full
  8. 8.A certificate of service

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 176(1); Article 6(1); First Schedule; Fourth Schedule
  • County Government ActNo. 17 of 2012
  • Employment Act, 2007Sections 31, 35, 37, 41, 43, 44(4)(g), 45(2), 49, 90
Jurisdiction invoked
Employment and labour relations jurisdiction; claim founded on the Employment Act, 2007 and Article 176(1) of the Constitution of Kenya 2010 as pleaded by the Claimant

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, "Nyaga N. Kairichi v County Government of Embu [2018] KEELRC 1835 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1835/eng@2018-05-10

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