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 AllowedNot stated in judgment (ELRC cause, filed 9th October 2012)· [2018] KEELRC 1859 (KLR)

Franklin Njeru v Kenya Kazi Services Limited & 2 others [2018] KEELRC 1859 (KLR)

Employment and Labour Relations Court
30 May 2018
MNMathews N. NdumaMOMaureen Onyango
4,430 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Claimant, employed by the KK Group from 1998/1999, served in Kenya (Mombasa and Nairobi) before being seconded to Burundi in 2006 and then Rwanda as Regional Accountant for the Great Lakes region. He was recalled to Kenya in 2011, promised deployment and a substantial exit package that never materialised, and his salary was stopped. He sued three Respondents seeking compensation for unfair termination, accrued leave, gratuity, notice pay, repatriation costs, unpaid salary and a certificate of service. The Respondents denied continuous employment, arguing that the Kenya, Rwanda and Burundi entities were distinct corporate bodies with separate contracts, and challenged Kenyan jurisdiction. The court held that the Claimant was continuously employed for 11 years by the group, having no real option at each transfer and remaining under the supervision and control of the Nairobi head office. It found he was constructively dismissed in Kenya, that Kenyan employment law applied as the domicile and connecting factor, and that his treatment violated Article 41 of the Constitution and section 45 of the Employment Act. Terminal dues were computed on the last gross salary at separation (approximately Kshs.585,800). The court awarded Kshs.2,795,864 for 105 leave days, Kshs.1,171,600 in lieu of two months' notice, USD 2,000 repatriation costs, compensation of 10 months' salary (Kshs.5,858,000), and a certificate of service, with interest and costs to the Claimant, jointly and severally against the Respondents. Claims for gratuity and unpaid salary were not included in the final awards.

Key legal issues

#
01

Continuity of employment across group companies in Kenya, Burundi and Rwanda

Holding

The Claimant was continuously employed for 11 years by the Respondents' group; the engagements were not separate and distinct contracts with different employers.

Reasoning

The court found the Claimant was transferred from Kenya to Burundi and then Rwanda without option, remained supervised by the Nairobi head office (notably the CFO Patrick Hughes), was paid partly from Kenya up to 2008, and the group traded as one regional entity. Third parties and employees reasonably believed they dealt with one entity, so the separate-corporate-personality argument failed.

p. 4
02

Constructive dismissal and applicable law/jurisdiction

Holding

The Claimant was constructively dismissed and the dismissal occurred in Kenya; Kenyan employment law applies and the Kenyan court has jurisdiction.

Reasoning

The final disagreement over terminal benefits took place in Nairobi, where the Claimant relocated on promises of deployment that never materialised. The Respondents admitted final payments would be made by the head office in Kenya. Kenya was the domicile of both parties and the connecting factor, so the court applied Kenyan employment law notwithstanding the foreign postings.

p. 5
03

Entitlement to reliefs and quantum of compensation

Holding

The Claimant proved leave days, notice pay, repatriation costs and unfair termination; compensation of 10 months' salary was awarded under section 49(1)(c) as read with section 49(4) of the Employment Act.

Reasoning

The court held terminal dues must be computed on the last gross salary at separation (Kshs.585,800), not on remuneration earned at diverse dates. Considering 11 years' unblemished service, relocations across three countries, the shoddy treatment and absence of contribution to the dismissal, the court exercised discretion to award 10 months' salary, citing comparable decisions awarding 12 months.

p. 6

Legal principles established

#
  • Terminal benefits are calculated based on the terms of the actual contract and reckoned from the basic or gross salary earned at the time of separation, even after long continuous service spanning different postings.
  • Constructive dismissal doctrine developed in comparative jurisdictions applies in Kenya because of the justiciable right to fair labour practices under Article 41 of the Constitution.
  • Where an employee is seconded across group entities in different countries under the control of the Kenyan head office, the engagements constitute continuous employment with one employer and Kenyan law applies.

Court orders

#
  1. 1.Judgment entered in favour of the Claimant against the Respondents jointly and severally
  2. 2.Kshs.2,795,864 in lieu of 105 leave days
  3. 3.Kshs.1,171,600 in lieu of two months’ notice
  4. 4.Equivalent of USD 2,000 as of May 2011, relocation reimbursement
  5. 5.Compensation equivalent to 10 months salary Kshs.5,858,000
  6. 6.Certificate of Service
  7. 7.Interest on the leave, notice and relocation awards at court rates from date of filing suit till payment in full
  8. 8.Interest on the compensation award from date of judgment at court rates till payment in full
  9. 9.Costs to follow the event

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 41
  • Employment Act, 2007section 45
  • Employment Act, 2007sections 49(1)(c) and 49(4)

Cases cited (5)

  • Antony Mkala Chitavi v Malindi Water & Sewerage Company Limited
    Cause No. 64 of 2012
  • ELRC, Kericho Cause No. 6 of 2014, [2015] eKLR
    [2015] eKLR
  • Western Excavating (ECC) Limited v Sharp
    [1978] KR 221
  • ELRC, Kisumu Cause No. 65 of 2016
  • Patrick Murambi Vs Nzoia Sugar Company Limited
    ELRC Bungoma Cause No. 30 of 2017
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute; Article 41 of the Constitution of Kenya 2010 and the Employment Act, 2007 (no specific jurisdictional provision cited)

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, "Franklin Njeru v Kenya Kazi Services Limited & 2 others [2018] KEELRC 1859 (KLR)", Case Analysis (2018). Not stated in judgment (ELRC cause, filed 9th October 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1859/eng@2018-05-30

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