Gilbert Atei Onsomu v Paliamentary Service Commission & another [2019] KEELRC 2095 (KLR)
The bottom line
#Kenya's Employment Court held an MP and the Parliamentary Service Commission were joint employers and ordered them to pay over Kshs. 2.4 million for unfair, unlawful termination.
What this practically means
#Executive summary
#Key legal issues
#Identity of the employer - whether the Parliamentary Service Commission, the MP, or both
The Respondents were joint-employers; no principal-agent relationship existed
The Court scrutinised the standard contract drafted by the Commission. Although the MP was designated 'Employer', the Schedule gave the Commission control: it directed terminations, received notice pay and liquidated damages, could deduct from salaries, and employees could appeal against Commission decisions and join its pensionable service. Such meaningful involvement in hiring, discipline, supervision and direction satisfies the joint-employer test.
Whether privity of contract shields the Parliamentary Service Commission
Privity was irrelevant because the Commission drew and was party to the contract
The 1st Respondent had argued, relying on the Court of Appeal in Parliamentary Service Commission v George Okoth Owuor, that privity excluded it. The Court held the Commission caused the contract to be drawn and was bound by its rights and obligations; it also declined to defer to the Court of Appeal decision because the Schedule containing the essential terms did not appear to have been placed before that Court.
Procedural fairness of termination
Termination was procedurally unfair - no disciplinary hearing was held and Section 41 was not complied with
The Claimant was suspended on 8th March 2010 without specific allegations and never taken through a disciplinary hearing. The Respondents' claim that written correspondence sufficed was rejected because Section 41 demands an oral hearing with a fellow employee or union representative present, save where parties are in different jurisdictions.
Substantive justification and effectiveness of termination
No valid reason was proved; the termination letter was not shown to have been received, so termination took effect only when the Claimant learnt of it
The alleged unauthorised disclosure of information was not particularised and the later allegation of misappropriation was unsupported by evidence. The termination letter dated 28th September 2010 was date-stamped by the National Assembly on 25th April 2012 and only entered the record on 18th September 2012; applying Societe Generale v Geys, termination could not take effect before the recipient received notice.
Remedies for unfair termination
Arrears of salary for the suspension period, annual leave pay, pro-rata gratuity at 31%, and 3 months' salary compensation under Section 49; general damages refused
Salary for the suspension period was protected (following Peterson Ndung'u v Kenya Power). Gratuity was computed on the pro-rata basis under Regulation 23(2), adopting the 31% rate favourable to the Employee over the contractual 25%. Multiple heads of general damages were refused as disproportionate to economic injury, compensation under Section 49(4) being the suitable remedy.
Legal principles established
#- Where a standard contract of employment is drafted and controlled by a third entity, that entity may be a joint employer notwithstanding a designation of another party as 'Employer'
- Direct or indirect control of an employee by an entity suffices to establish joint-employer status
- Section 41 of the Employment Act requires an oral disciplinary hearing where employer and employee are within the same jurisdiction; exchange of correspondence does not satisfy it
- Termination takes effect only when the notice of termination is received by its recipient
- Where terms of employment conflict, the Court adopts the terms favourable to the Employee
Court orders
#- 1.Declaration that termination of the Claimant's contract was unfair and unlawful
- 2.The Respondents shall jointly and severally pay the Claimant arrears of salary of Kshs. 1,500,000
- 3.The Respondents shall jointly and severally pay annual leave at Kshs. 67,307
- 4.The Respondents shall jointly and severally pay proportionate gratuity at Kshs. 744,000
- 5.The Respondents shall jointly and severally pay equivalent of 3 months' salary in compensation for unfair termination at Kshs. 150,000 (total award Kshs. 2,461,307)
- 6.Costs to the Claimant
- 7.Interest at 14% per annum from the date of Judgment till payment in full
- Jurisdiction invoked
- Original employment jurisdiction of the Industrial Court under the Industrial Court Act / Employment and Labour Relations Court Act; dispute over employment governed by the Employment Act 2007 and the Parliamentary Service Act No. 10 of 2000
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gilbert Atei Onsomu v Paliamentary Service Commission & another [2019] KEELRC 2095 (KLR)", Case Analysis (2019). Employment and Labour Relations Court Cause (Nairobi) – Statement of Claim filed 6th August 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2095/eng@2019-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.