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ELRCPartially AllowedCause No 1284 of 2016· [2020] KEELRC 91 (KLR)

Njai Mutitu v University of Nairobi [2020] KEELRC 91 (KLR)

Employment and Labour Relations Court
4 December 2020
MOMaureen Onyango
2,959 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan university worker fired over a date-of-birth discrepancy won damages because his employer terminated him without notice or a chance to respond.

What this practically means

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Executive summary

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The claimant, a cleaner in the University of Nairobi's estates department since about 2002, was terminated on 9 October 2015 on grounds that he had attained the mandatory retirement age of 60, the respondent's HRMIS recording his date of birth as 4 July 1953, whereas his national identity card and birth certificate showed 4 July 1957. He sought declarations of unfair termination, reinstatement, terminal benefits, notice pay, 12 months' compensation and a certificate of service. The court first found that a subsisting contract existed at termination, rejecting the respondent's argument that the renewed contract rescinded before its commencement date meant no employment relationship. Applying section 43(2) of the Employment Act, the court held the respondent genuinely believed, based on its records, that the claimant had attained retirement age, so the reason for termination was valid. However, the procedure was unfair: the termination took immediate effect without notice, denying the claimant an opportunity to present documents clarifying his date of birth, and the respondent ignored his subsequent letters enclosing his IDs and birth certificate. The court further found the claimant had a legitimate expectation to serve the renewed 12-month contract he had signed, and, given about 13 years of continuous renewals, to renewal until retirement age per his documents. Judgment was entered for the claimant in the total sum of Kshs.363,493, comprising 12 months' compensation of Kshs.335,532 and one month's notice pay of Kshs.27,961. Gratuity and salary for the remainder of the contract were refused. The respondent was ordered to issue a certificate of service, pay terminal dues, costs and interest from the date of judgment.

Key legal issues

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01

Existence of a subsisting contract at termination

Holding

A contract of employment existed at the time of termination; the claimant was serving a contract expiring 30 November 2015 and had been issued a renewed 12-month contract

Reasoning

The respondent argued the renewed contract was rescinded before its start date on 1 December 2015 and thus there was no employment relationship capable of termination. The court rejected this, noting the claimant was already serving an existing contract with about two months to run and had been issued a further 12-month contract which he accepted by signing. There was therefore a live employment relationship on 9 October 2015.

p. 3
02

Valid reason for termination

Holding

The respondent had a valid reason based on its employment records showing the claimant past the compulsory retirement age of 60

Reasoning

Under section 43(2) of the Employment Act, the reason for termination is what the employer genuinely believed to exist at the time. The respondent's HRMIS records recorded the claimant's date of birth as 4 July 1953, making him past the mandatory retirement age of 60 when the government circular on retirement was applied. The court could not determine whether this was an error or what the claimant submitted at recruitment.

p. 4
03

Procedural fairness

Holding

The termination was procedurally unfair because it was effected with immediate effect without notice, depriving the claimant of a chance to correct the date-of-birth discrepancy

Reasoning

Under section 45(4)(b) the employer must act with justice and equity. The termination was not disciplinary but was done with immediate effect. Had notice been given, the claimant would have presented his ID and birth certificate showing a 1957 birth date. The respondent also failed to acknowledge the claimant's clarifying letters of 20 November 2015 and 11 January 2016. The respondent should at least have allowed the claimant to complete the expiring contract.

p. 4
04

Legitimate expectation

Holding

The claimant had a legitimate expectation to serve the renewed 12-month contract and to continued renewal until mandatory retirement per his ID and birth certificate

Reasoning

Having served about 13 years under repeatedly renewed contracts and having been issued and signed a renewal for 1 December 2015 to 30 November 2016, the claimant had a legitimate expectation to serve that term and to continued renewals until retirement age as per his national identity card and birth certificate.

p. 4
05

Remedies

Holding

12 months' salary compensation of Kshs.335,532 plus one month's notice pay of Kshs.27,961; gratuity and salary for the remainder of the contract refused

Reasoning

Compensation was based on the salary in the new contract the claimant was not allowed to serve. Gratuity was refused because the claimant was an NSSF member and his contract made no provision for it. Payment for the remainder of the contract term would amount to double compensation given the award for unfair termination.

p. 4

Legal principles established

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  • An employer must prove the reason for termination; the reasons are those the employer genuinely believed to exist at the time of termination
  • A renewal of a fixed term contract creates a legitimate expectation to serve the renewed term; termination must nonetheless follow fair procedure including notice

Court orders

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  1. 1.Judgment entered in favour of the claimant against the respondent in the total sum of Kshs.363,493/-
  2. 2.The Respondent shall issue a certificate of service to the claimant in terms of Section 51 of the Employment Act
  3. 3.The Respondent shall pay all terminal dues as stated in the letter of termination
  4. 4.The Respondent shall pay costs of the suit to the claimant
  5. 5.Interest shall accrue on decretal sum from date of judgment

Authorities

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Legislation

  • Employment Actsection 45
  • Employment Actsection 10
  • Employment Actsection 41
  • Employment Actsection 43(2)
  • Employment Actsection 45(4)(b)
  • Employment Actsection 49
  • Employment Actsection 51
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (8)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Rufus Osotsi Olefa v Nairobi City Water and Sewerage Company Limited
    [2018] eKLR
  • Republic v Judicial Service Commission & 2 Others ex parte Erastus M Githinji
    [2019] eKLR
  • Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Malawi Railways Ltd v Nyasulu
    [1998] MWSC
  • Pathfinder International Kenya Limited v Stephen Ndegwa Mwangi
    [2019] eKLR
  • Johnstone Luvisia v Allpack Industries Limited
    [2019] eKLR
  • Isaiah Makhoha v Basco Products (K) Ltd
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (not expressly cited in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Njai Mutitu v University of Nairobi [2020] KEELRC 91 (KLR)", Case Analysis (2020). Cause No 1284 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/91/eng@2020-12-04

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