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ELRCPartially AllowedCause No. 1709 of 2014· [2018] KEELRC 1852 (KLR)

Joseph Apindi Ochieng v Kenya Commercial Bank Football Club [2018] KEELRC 1852 (KLR)

Employment and Labour Relations Court of Kenya
27 April 2018
1,456 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a football club unfairly ended a player's contract by just stopping his pay, awarding him over Kshs. 2.3 million plus costs.

What this practically means

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Executive summary

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The Claimant, a professional footballer, sued the Respondent club claiming damages for unfair and unlawful termination and non-payment of terminal dues. He alleged he was employed on 3 January 2011, was injured on 24 June 2012 while playing a friendly match sanctioned by the team coach, and that instead of providing the contractually promised medical treatment, the Respondent terminated his services in December 2012 without notice and without paying terminal dues. He sought damages of Kshs. 5,000,000. The Respondent denied that the Claimant was its employee, denied the alleged contract, and contended that a Kenya Premier League standard contract running from July 2011 to November 2012 governed the relationship and had simply lapsed on expiry, with all entitlements paid. The court framed four issues: existence of employment, terms of engagement, manner of termination, and remedies. It found a contract dated 3 January 2011 for 36 months existed, noting the Respondent's own pleading that it had terminated the Claimant lawfully per contract, rendering its denial baseless. The alleged second contract was unproved since the Claimant denied signing it and the Respondent failed to exhibit a notice of termination. The court held the contract had not lapsed; the Respondent terminated it unfairly by stopping salary payments in January 2013 without notice, and also failed to treat the Claimant's injury sustained while the contract subsisted. The court awarded one month's salary in lieu of notice (Kshs. 25,000), Kshs. 2,000,000 damages for injury and loss of amenities, and 12 months' salary (Kshs. 300,000) for unfair termination, totaling Kshs. 2,325,000, plus costs and interest from the date of judgment.

Key legal issues

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01

Whether an employment relationship existed between the Claimant and the Respondent

Holding

The court found a contract of employment dated 3 January 2011 existed between the parties; the Respondent's denial was contradicted by its own pleading that it had lawfully terminated the Claimant's services per the contract.

Reasoning

The Claimant produced a contract dated 3.1.2011 for a 36-month term. The Respondent's defence both denied the contract and averred that services were terminated lawfully per the contract, which the court found made the denial baseless. The court therefore found the employment relationship existed and was governed by the Claimant's Appendix 1 contract.

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02

Which of the two competing contracts governed the engagement

Holding

The 2011 contract produced by the Claimant governed the relationship; the later 17-month standard contract allegedly signed under Kenya Premier League rules was not proved, as the Claimant denied signing it and the Respondent failed to discharge the burden of proof, and it did not nullify the first contract.

Reasoning

The Respondent relied on a KPL standard contract running from 1 July 2011 to November 2012 to show the contract lapsed by expiry. The Claimant denied signing it. The court held the onus of proving execution rested on the Respondent, which it failed to discharge, and the alleged notice of termination was not exhibited. The second contract also never nullified the first.

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03

Whether the termination was fair and lawful

Holding

The contract had not expired; the Respondent terminated it unfairly by stopping salary payments in January 2013 without the one month's notice required by the contract, and also failed to accord the Claimant medical treatment for an injury sustained while the contract subsisted.

Reasoning

The governing contract required one month's notice or termination on medical grounds confirmed by the club's doctor. The Respondent claimed the contract lapsed, which the court rejected. Salary payments were stopped without notice, amounting to unfair and unjustified termination. A medical doctor called by the Respondent confirmed a serious knee injury leaving the Claimant unable to play, yet the Respondent failed to treat him.

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Legal principles established

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  • Where a party denies signing a written contract, the burden lies on the party producing that contract to prove its execution; an unproved and unexhibited notice of termination cannot sustain a lawful termination.
  • Termination of an employment contract without the contractual notice, including by simply stopping salary payments, is unfair and unjustified.

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs. 25,000
  2. 2.Damages for injuries suffered and resultant loss of amenities of Kshs. 2,000,000
  3. 3.Compensation for unfair/unlawful termination equivalent to 12 months' salary of Kshs. 300,000
  4. 4.Total award of Kshs. 2,325,000 plus costs and interest at Court rates from the date of judgment

Authorities

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Legislation

  • Employment Act
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (claim for unfair termination and terminal dues)

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, "Joseph Apindi Ochieng v Kenya Commercial Bank Football Club [2018] KEELRC 1852 (KLR)", Case Analysis (2018). Cause No. 1709 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1852/eng@2018-04-27

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