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ELRCPartially AllowedCause No 884 of 2014· [2019] KEELRC 1740 (KLR)

Onyango v Judicial Service Commission (Cause 884 of 2014) [2019] KEELRC 1740 (KLR)

Employment and Labour Relations Court
30 April 2019
4,644 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a flawed job offer from a senior HR official still bound the Judicial Service Commission, and revoking it without a hearing was unfair.

What this practically means

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Executive summary

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The Claimant, Clement Oduor Onyango, sued the Judicial Service Commission for wrongful, unfair and unconstitutional revocation of his appointment as Chief Facilities Officer. He was offered the position on temporary terms for twelve months by letter dated 16/09/2013 signed by the Director of Human Resource and Administration, Dismus Obondo. He accepted, resigned from Safaricom, but on reporting was told to wait, and by letter dated 02/12/2013 was informed the appointment had been revoked. The Respondent denied any employer-employee relationship, asserting the position did not exist in its establishment, no vacancy was advertised, and the offer letter was irregularly issued without its sanction; it revoked the offer under Section 14 of the Third Schedule to the Judicial Service Act. The court framed three issues: existence of a contract, breach, and remedies. It held that Obondo, though acting without authority, was an agent of the JSC and his actions bound it under the doctrine of apparent authority, establishing an employment contract. On breach, the court found the contract was terminated without notice or a hearing, contrary to Section 41 of the Employment Act, rendering the termination unfair and unjustified. The court awarded the equivalent of 12 months' salary (Kshs. 2,352,000), one month's salary in lieu of notice (Kshs. 219,000) and one year's leave allowance (Kshs. 23,000), totaling Kshs. 2,594,000 less statutory deductions, plus costs and interest at court rates from the date of judgment.

Key legal issues

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01

Whether an employment contract existed between the Claimant and the Respondent despite the irregularity of the recruitment

Holding

Yes. The offer letter was written by the Director of Human Resource and Administration on the Judiciary's letterhead, and under the law of agency his actions bound the JSC through apparent authority; an employment contract was established.

Reasoning

The court held that the letter of offer was written by an authorised officer employed by the Respondent as Director of Human Resources. As an outsider, the Claimant could not know the Director lacked authority, and such a director could be assumed to have authority reasonable to his functions. Obondo wrote on the Judiciary's letterhead, signed as Director and copied the Chief Registrar, indicating authority. His actions as agent bound the JSC. The Claimant accepted the offer and resigned from Safaricom, and the court found a contract existed.

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02

Whether the revocation of the appointment amounted to unfair termination

Holding

Yes. The termination was effected without notice and without giving the Claimant an opportunity to be heard, contrary to Section 41 of the Employment Act.

Reasoning

Having found a contract existed, the court held the Respondent could only terminate it after following due process under Section 41 of the Employment Act, which requires explanation of reasons and hearing representations. There was no notice to terminate, and the Claimant was never given a chance to explain his case. He was condemned unheard, so the termination was unfair and unjustified.

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03

Remedies for the unfair termination

Holding

The Claimant was awarded the equivalent of 12 months' salary as compensation, one month's salary in lieu of notice, and one year's leave allowance, less statutory deductions.

Reasoning

The court exercised its remedial discretion under the Employment Act, awarding compensation equivalent to 12 months' gross salary computed at Kshs. 196,000 per month, plus one month's salary in lieu of notice and leave allowance for one year. The awarded amounts differ from the specific heads of damages pleaded by the Claimant and exclude the claimed opportunity costs.

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Legal principles established

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  • An offer of appointment issued by an officer holding himself out as having authority binds the employer under the doctrine of apparent authority; third parties cannot be required to verify each employee's authority before contracting.
  • Termination of employment without notice and without a hearing is unfair and unjustified.

Court orders

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  1. 1.Compensation of 12 months' salary for unlawful termination (Kshs. 2,352,000/=)
  2. 2.One month's salary in lieu of notice (Kshs. 219,000/=)
  3. 3.Leave allowance for one year (Kshs. 23,000/=)
  4. 4.Total award of Kshs. 2,594,000/= less statutory deductions
  5. 5.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSections 2, 9(1), 9(2), 9(3), 10, 14, 18(5)(b), 35(3), 41(1), 41(2), 42(1), 43(1), 44(3), 44(4), 45, 47(1), 47(5), 49(4), 51
  • Judicial Service ActSections 3(c), 3(g), 4(f), 4(g), 32, Third Schedule (Parts III and V, Sections 8, 9, 14)
  • Judicial Service Staff RegulationsSection B.4(i)
  • Constitution of KenyaArticles 47, 50, 171(1)(c), 172(2)(a)

Cases cited (8)

  • Fidelix Mwendwa Muli v Bamburi Cement Limited
    [2018] eKLR
  • Simon Mukulo v County Government of Kakamega
    [2016] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Other
    [2014] eKLR
  • Agnes Wanjiku & 10 Others v Chief Registrar of the Judiciary & another
    [2017] eKLR
  • Trusted Society of Human Rights Alliance v Nakuru Water & Sanitation Services Company & Another
    [2013] eKLR
  • Maurice Oduor Oketch v Chequered Flag Limited
    [2013] eKLR
  • Nicholas Okwema & 8 other v Judicial Service Commission
    [2016] eKLR
  • D.K. Njagi Marete v Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (implied from the nature of the claim; the judgment does not expressly invoke a jurisdictional provision)

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, "Onyango v Judicial Service Commission (Cause 884 of 2014) [2019] KEELRC 1740 (KLR)", Case Analysis (2019). Cause No 884 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1740/eng@2019-04-30

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