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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 442 (KLR)

John Okiro Misiga v National Land Commission [2019] KEELRC 442 (KLR)

Employment and Labour Relations Court of Kenya
1 November 2019
3,920 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This first-instance employment claim before the Employment and Labour Relations Court at Nairobi concerned alleged unfair and unlawful termination of the Claimant's employment by the National Land Commission. The Claimant, formerly a permanent and pensionable employee of the National Treasury, was posted to the Commission in October 2013, issued a five-year fixed-term contract as Assistant Director, Finance and Administration, and in July 2014 obtained early retirement from the National Treasury under the 50-Year Rule. In August 2015 the Commission 'posted' him back to the National Treasury, which he treated as constructive and unfair termination. The Respondent maintained he was merely seconded and posted back to his parent employer. The court found the dictionary meaning of secondment and the correspondence - the letter of 15.10.2013 releasing the Claimant indefinitely, the five-year renewable contract, allocation of a personal number, refund of transitional salary and his accepted retirement - established a transfer, not secondment. Consequently, the Commission was bound by the contract until its lapse or lawful termination; posting him back without notice, valid reason or fair hearing amounted to unfair constructive termination. The court declared the termination unfair and unlawful, awarded 12 months' salary compensation under section 49(1) of the Employment Act, and entered judgment for Kshs.5,736,840, subject to statutory deductions, plus costs and interest at court rates. Claims for amounts already paid were barred by estoppel and the claim for the unexpired contract term was rejected for lack of contractual basis.

Key legal issues

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01

Whether the Claimant was transferred or seconded to the Respondent

Holding

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

Reasoning

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.

p. 6
02

Whether posting the Claimant back to the National Treasury amounted to unfair constructive termination

Holding

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

Reasoning

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.

p. 6
03

What remedies the Claimant is entitled to

Holding

Twelve months' salary compensation under section 49(1) of the Employment Act, but no pay for the unexpired contract term or dues already paid

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.A declaration that the termination of the Claimant's contract of employment by the Respondent was unfair and unlawful
  2. 2.Under section 49(1) of the Employment Act, award of 12 months' salary compensation for unfair termination
  3. 3.Judgment entered for the Claimant in the sum of Kshs.5,736,840, subject to statutory deductions
  4. 4.Costs of the suit to the Claimant plus interest at court rates from the date of the judgment

Authorities

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Legislation

  • Employment ActSection 51
  • Employment ActSection 10(5)
  • Employment ActSections 35, 41, 43 and 45
  • Employment ActSection 49(1)
  • National Land Commission ActSection 23

Cases cited (18)

  • Public Service Commission Vs County Government of Bomet
    (2016) eKLR
  • David Barasa Vs British Peace Support Team & Another
    (2016) eKLR
  • Rev. John Mugania Vs Kenya Methodist University & Another
    Cause No. 133 of 2013
  • A.M Msagha Vs Chief Justice of Kenya & 7 Others
    (2006) eKLR
  • Henry Ochido Vs NGO Co-ordination Board
    (2015) eKLR
  • Aviation and Allied Workers Union Versus Kenya Airways Limited and 3 Others
  • National Union of Metal Workers of S.A Vs Vetsak Co-operation Ltd and Others
    1996 (4) SA 577 (A)
  • Stanely Kaunga Nkarichia Vs Meru Teachers College & Another
    (2016) eKLR
  • Highlands Water Company Limited Vs Purity Wambui Muriithi
    (2016) eKLR
  • Naim Bilal Yaseen Vs Judicial Service Commission
    (2017) eKLR
  • Ng Ching Yoon & Others Vs A. & W Malaysia Sdn Bhd
    (2005) 3ILR 306
  • Bank Simpanan National Finance Bhd & Another Vs Omar Hashim
    (2002) I ILR 272
  • Mbatha Vs University of Zululand
    (45/13) (2013) ZACC 43; 2014 (2) BCLR 123 (CC); (2014) 35 ILJ 349 (CC); (2014) 4 BLLR 307 (CC)
  • Peter Mafunda Vs Zimbabwe Energy Regulatory Authority
    Civil Appeal No. SC 134/15
  • Mahasin Elbashir Abdalla Vs Libya Oil Kenya Ltd
    (2012) eKLR
  • Morgan Air Cargo Limited Vs Everest Enterprises Limited
    (2014) eKLR
  • Mary Nyangasi Ratemo & 9 others v Kenya Police Staff Sacco Limited & another
    [2013] eKLR
  • DK Njagi Marete vs. Teachers Service Commission
    Industrial Cause No 379 of 2009
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "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.