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ELRCDismissed· [2019] KEELRC 2128 (KLR)

John Kiptoo Lagatt v National Oil Corporation of Kenya [2019] KEELRC 2128 (KLR)

Employment and Labour Relations Court of Kenya
27 February 2019
NMNzioki wa MakauRSRadido Stephen
1,410 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Both sides lost: an employee's unfair dismissal claim and an employer's negligence counterclaim were dismissed, proving neither side in this Kenyan employment dispute.

What this practically means

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Executive summary

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The Claimant, a civil engineer employed by the Respondent from 2nd January 1998 on a six-month renewable contract, sought renewal of his contract for three years from 1st January 1999. Negotiations broke down when the Respondent proposed terms the Claimant rejected, returning the 'local agreement' unexecuted. His services were severed on 26th March 2001, and he claimed he was neither heard nor given an opportunity to respond to allegations. He sought damages for unlawful termination and terminal dues (underpayment, gratuity, leave dues, leave allowance, a repossessed generator, balance of the unexpired contract and out of pocket expenses) totalling Kshs. 3,771,909/-. The Respondent denied unlawfully terminating him, contending the contract expired after he rejected its extension offer, that one month's salary in lieu of notice was paid, and counterclaimed Kshs. 23,800,000/- for losses allegedly caused by the Claimant's negligent supervision of the Yala, Kaplong, Bondeni and Nairobi truck loading projects. The suit, commenced in the High Court, was transferred to the Employment and Labour Relations Court. The court found the Claimant did not prove the dismissal contravened his contract or the applicable law, noting that the Employment Act 2007's hearing procedures in Section 41 did not apply to a 2001 dismissal under the repealed Act, and that valid reasons were given. On the counterclaim, the projects were not the sole responsibility of the Claimant, the Respondent did not attribute any portion of loss to him, and his involvement in the Nairobi dumping was minor. Both the claim and counterclaim failed. The suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Fairness of the termination of the Claimant's contract in March 2001

Holding

The termination was not unlawful; reasons were given and were valid under the law applicable before the Employment Act 2007

Reasoning

The dismissal arose out of failed negotiations for renewal of the contract on terms the Claimant found unacceptable. The 2007 Act's procedural protections in Section 41 did not apply retrospectively to a 2001 dismissal. The Respondent gave reasons for the dismissal which the court found valid, and the Claimant did not prove breach of contract or of the then-applicable law.

p. 2
02

The Respondent's counterclaim for Kshs. 23,800,000/- in project losses

Holding

The counterclaim failed because the projects were not the sole responsibility of the Claimant and no portion of loss was attributed to him

Reasoning

A careful scrutiny showed the projects were not solely the Claimant's responsibility. On the Nairobi truck loading site, the deal was sealed while the Claimant was in Western Kenya and his involvement was minor, and management allowed continued stockpiling without complaint until the Claimant sued. The counterclaim was therefore not proved.

p. 2

Legal principles established

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  • Dismissals occurring before the Employment Act 2007 are governed by the repealed Act, under which an employer giving valid reasons for termination was not bound by the elaborate hearing procedure in Section 41 of the 2007 Act
  • An employer counterclaiming for losses caused by an employee's alleged negligence must prove the loss and attribute the portion of responsibility to that employee

Court orders

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  1. 1.The suit is dismissed on both the Claim and the Counterclaim
  2. 2.Each party to bear their own costs
Jurisdiction invoked
Jurisdiction transferred from the High Court of Kenya to the Employment and Labour Relations Court pursuant to the rules of that court; no specific constitutional or statutory provision cited

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 Kiptoo Lagatt v National Oil Corporation of Kenya [2019] KEELRC 2128 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2128/eng@2019-02-27

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