Timothy Ikaale Kotol & 2 others v Mogotio Constituency Development Fund Committee & another [2020] KEELRC 610 (KLR)

The claimants' fixed term contracts lapsed on 1st June 2011 and 28th February 2013, but they continued in service on a verbal contract, confirmed by the respondent's own meeting resolutions of 30th May 2014. Employees retained on verbal terms without defined conditions are protected under section 37 of the Act. Their employment was then terminated on 30th May 2014 without prior notice, valid reasons or a hearing, contrary to the mandatory provisions of sections 35, 41, 43 and 45 of the Employment Act.

The respondent's meeting of 30th May 2014 resolved, on the employees' request, to pay gratuity at 31% of annual basic pay for the completed fixed term contracts. The claimants confirmed receiving cheques of Ksh.60,000 and Ksh.54,000 respectively. The respondent produced evidence of a cheque dated 7th October 2014 cashed on 10th October 2014 depositing Ksh.52,840 and Ksh.47,680 into their Skyline Sacco accounts. Since the claimants had accounts with the Sacco but had never checked them, they were directed to confirm the deposits and report to court within 14 days.

Having found unfair termination, the court applied the statutory remedies. Notice pay of one month's pay was due under section 35 based on the last earned wages of Ksh.12,000 and Ksh.18,000. Compensation under section 49 was calibrated to the period each claimant served beyond the lapsed fixed term contracts under section 37 - six months' gross wage (Ksh.72,000) for the 1st claimant who served three years beyond, and two months' gross wage (Ksh.36,000) for the 3rd claimant who served one year beyond.