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ELRCDismissedNot stated in judgment· [2020] KEELRC 898 (KLR)

Anne Kahiri v Rusinga Investments Company Limited [2020] KEELRC 898 (KLR)

Employment and Labour Relations Court
5 June 2020
MOMaureen Onyango
2,272 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a teacher's unfair termination claim because her 2006 dismissal was governed by the old law, which did not require a hearing or compensation.

What this practically means

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Executive summary

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The claimant, a teacher employed by the respondent school from February 2002, challenged the termination of her employment in June 2006, which was first communicated as termination with effect from 30 June 2006 and later substituted with a summary dismissal issued on 5 July 2006 following an incident in which she pulled up a 9-year-old boy's sagging pants. She sought Kshs.22,808,248 in itemised damages, general damages, interest and costs, contending the dismissal breached natural justice and her contract. The respondent maintained the dismissal was for gross misconduct under clause 17 of her contract and that all dues were paid. The court held that the applicable law was the repealed Employment Act (Cap 226, 1976), under which an employer needed only to give notice or pay in lieu, with no obligation to hear the employee or assign reasons; the Employment Act, 2007 did not apply retrospectively. Applying Rift Valley Textiles v Oganda, the court held natural justice had no application to a simple contract of employment absent express contractual provision. The claimant had been paid three months' salary in lieu of notice and gratuity, and her claims for allowances, future earnings, pension, NSSF, medical cover, children's transport and tuition, and underpaid gratuity were either unproved or not payable after termination. The claim was dismissed with no orders for costs.

Key legal issues

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01

Applicable law governing the 2006 termination

Holding

The termination was governed by the repealed Employment Act (Cap 226, 1976), which required only notice or pay in lieu and no hearing or reasons

Reasoning

The court held that the Employment Act, 2007 did not apply retrospectively to a 2006 termination. Under the repealed Act the employer need only give three months' notice or pay in lieu and had no duty to hear the employee or assign reasons. The claimant was paid three months' salary in lieu of notice and gratuity, satisfying her contract.

p. 4
02

Application of natural justice to pre-2007 contracts

Holding

Natural justice applies only if the contract specifically provides for it; the claimant's contract clause 17 required only a Headmaster's recommendation for summary dismissal

Reasoning

Relying on Rift Valley Textiles Limited v Edward Onyango Oganda, the court reasoned that unless the parties contractually incorporate the rules of natural justice, they cannot found a cause of action. The claimant's contract permitted summary dismissal on the Headmaster's recommendation, and her claim for procedural unfairness therefore could not succeed under the then-applicable law.

p. 3

Legal principles established

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  • Before the Employment Act, 2007, the repealed Employment Act required no hearing before termination; the employer need only give notice or pay in lieu and was under no obligation to assign reasons
  • Rules of natural justice do not apply to a simple contract of employment unless the contract specifically so provides

Court orders

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  1. 1.The claim is dismissed
  2. 2.No orders for costs (each party to bear own costs)

Authorities

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Legislation

  • Employment Act (1976, repealed) / Employment Act Cap 226Section 17
  • Employment Act, 2007General
  • Trade Disputes Act (repealed)Section 15
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (5)

  • The Principal BOG Machakos Teachers College v Wambua Muange
    Civil Appeal No. 15 of 2009
  • Mary Wakhabubi Wafula v British Airways PLC
    [2015] eKLR
  • Leonard Odindi v Kenya Ports Authority
    [2011] eKLR
  • Hassan Maginya Kiage v Attorney General & Another
    [2017] eKLR
  • Rift Valley Textiles Limited v Edward Onyango Oganda
    [1994] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "Anne Kahiri v Rusinga Investments Company Limited [2020] KEELRC 898 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/898/eng@2020-06-05

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