Peter Wanyama Ojiambo v Technical University of Kenya & 2 others [2020] KEELRC 716 (KLR)
The bottom line
#Two Kenyan lecturers won over Kshs.1.3 million each after the court ruled their employer's incomplete appointment letters and pay withholding amounted to unfair dismissal.
What this practically means
#Executive summary
#Key legal issues
#Validity of the appointment letter dated 12th November 2014
The letter was unlawful and null and void as it omitted mandatory particulars under sections 10 and 10(3) of the Employment Act, including remuneration
Section 10(2) requires a written contract to state remuneration, the method of calculating it, intervals of payment and other particulars. The 12th November 2014 letter left compensation to be based on an undisclosed teaching load with no benefits. Under section 3(6) such terms are minimum statutory terms that cannot be varied, so the letter was void. Under section 16 the court may determine the applicable particulars.
Whether the claimants' contracts were renewed and on what terms
Contracts were renewed on the terms of the immediate past contracts (Kshs.68,234 per month) since the claimants were already working at the Dean's request when the void letters were issued
The Executive Dean had requested extension of the claimants' contracts on similar terms and scheduled them in the teaching timetables. The impugned letters were received on 20th November 2014, after the semester had begun. Having found the letters null and void, the court held the prior contracts' terms governed, entitling each claimant to salary from September 2014 to April 2015.
Whether there was constructive/unfair dismissal
Yes - the unilateral change of terms to the claimants' detriment, refusal to pay for work done and withdrawal of duties amounted to fundamental breach and unfair termination
RW1 admitted the respondent changed the terms of engagement without notice, prepared inferior contracts, and stopped assigning work when the claimants refused to sign, while withholding pay for work already done. Unilateral detrimental variation is repudiatory breach. Applying section 49(4) factors including length of service, the court awarded 5 months' salary as compensation.
Entitlement to gratuity
Claimants entitled to gratuity at 15% of basic salary for 7 years, computed on basic salary of Kshs.33,410, totalling Kshs.420,966 each
Clause 10.2 of the Terms of Service entitles an employee on contract terms for a continuous period of two or more years, not in the pension scheme, to gratuity at 15% of basic salary. The clause does not require the contract to be a single two-year term. RW1 admitted the claimants were on contract terms and entitled to gratuity. The respondent did not dispute the tabulation, only the basis of salary.
Claims for underpayment based on the Terms of Service and the 2013-2017 CBA
Dismissed - claimants failed to prove entitlement to Grade XIIA or UASU CBA benefits, and pre-2012 claims were time barred
The claimants' contracts were specific about remuneration and they never questioned it during engagement, other than the last letter. The CBA relied on was for UASU members and post-dated their exit; no proof of UASU membership was adduced. Claims from 2007 to 2012 were also more than three years old and time barred.
Legal principles established
#- An appointment letter that fails to state remuneration and other mandatory particulars offends section 10 of the Employment Act and is null and void under section 3(6)
- Where an employer issues an invalid contract while the employee is already working at the Dean's request, the employee's contracts are renewed on the terms of the immediate past contracts
- Unilateral change of employment terms to the detriment of an employee without consultation amounts to fundamental breach and unfair termination
- Continuous service on successive short contract terms qualifies for gratuity under a clause requiring a continuous period of two or more years on contract terms
Court orders
#- 1.Judgment for each claimant against the respondents for unpaid salary of Kshs.545,872
- 2.Gratuity of Kshs.420,966 to each claimant
- 3.Compensation of 5 months' salary of Kshs.341,170 to each claimant
- 4.Total award of Kshs.1,308,008 for each claimant
- 5.Respondent to pay claimants' costs of the suit
- 6.Decretal sum to accrue interest from the date of judgment
- 7.Certificate of service to be issued to the claimants as directed by the court
- Jurisdiction invoked
- Article 162(2) of the Constitution (employment and labour relations court jurisdiction); claims brought under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Wanyama Ojiambo v Technical University of Kenya & 2 others [2020] KEELRC 716 (KLR)", Case Analysis (2020). Cause No. 884 of 2015 (Consolidated with Cause No. 943 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/716/eng@2020-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.