John Okiro Misiga v National Land Commission [2019] KEELRC 442 (KLR)
The bottom line
#A Kenyan court ruled that 'posting back' a transferred employee mid-contract was unfair termination, awarding 12 months' salary worth over Kshs 5.7 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was transferred or seconded to the Respondent
The Claimant was transferred to the Respondent, not seconded; his employment relationship with the National Treasury ended when he was released indefinitely and later retired under the 50-Year Rule
The court relied on the dictionary meanings of secondment and the letters of 15.10.2013 and 30.9.2013 releasing the Claimant indefinitely, plus the appointment letter of 28.10.2013 for a renewable five-year fixed term, allocation of a personal number, refund of salary paid during transition, and his accepted early retirement request, all indicating a change of employer rather than a recallable secondment.
Whether posting the Claimant back to the National Treasury amounted to unfair constructive termination
Yes. The posting back before expiry of the five-year contract, without notice, valid reason or a fair hearing, breached the contract and amounted to unfair constructive termination
Having found a transfer, the Respondent was bound by the five-year contract until it lapsed by effluxion of time or was terminated by notice or for cause. The Respondent proved neither a valid and fair reason nor a fair procedure, so the purported posting back constituted constructive and unfair termination.
What remedies the Claimant is entitled to
Twelve months' salary compensation under section 49(1) of the Employment Act, but no pay for the unexpired contract term or dues already paid
In awarding 12 months' salary the court considered the Claimant's non-contribution to the termination through misconduct, his reasonable expectation of three further years of employment, and his limited prospects at age 56. Claims for amounts already paid were barred by estoppel and the claim for the unexpired term lacked contractual basis.
Legal principles established
#- Where an employee is transferred, the original employer ceases to be his employer and the transferee becomes the employer; where seconded, the original employer remains the employer
- Termination is unfair where the employer does not prove a valid and fair reason and a fair procedure, including an opportunity to be heard
- Employment remedies must be proportionate to economic injuries and are not aimed at unjust enrichment
Court orders
#- 1.A declaration that the termination of the Claimant's contract of employment by the Respondent was unfair and unlawful
- 2.Under section 49(1) of the Employment Act, award of 12 months' salary compensation for unfair termination
- 3.Judgment entered for the Claimant in the sum of Kshs.5,736,840, subject to statutory deductions
- 4.Costs of the suit to the Claimant plus interest at court rates from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Okiro Misiga v National Land Commission [2019] KEELRC 442 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/442/eng@2019-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.