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ELRCPartially AllowedCause No 81 of 2020· [2020] KEELRC 922 (KLR)

Santai Punyua Kimakeke v Free the Children [2020] KEELRC 922 (KLR)

Employment and Labour Relations Court
27 May 2020
HWHellen Wasilwa
1,564 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled that once employment ends, a former worker's right to stay in employer housing ends too, allowing only a short grace period to move out.

What this practically means

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Executive summary

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The Claimant, a former employee of the Respondent, moved the court by Notice of Motion dated 24th January 2020 under Articles 41(1) and 47(1) of the Constitution, Sections 45(1) and 46(h) of the Employment Act and Rule 17 of the ELRC Rules, seeking a temporary injunction restraining his eviction from the Respondent's residential house pending hearing of his application and Statement of Claim. He alleged that the parties had agreed to an exit package allowing him six months' continued occupation from January 2020, that his employment was unlawfully terminated, and that a six-hour notice to vacate issued after he filed a constitutional petition over malicious prosecution was capricious and violated natural justice. The Respondent opposed, contending among other grounds that the court lacked jurisdiction given the Claimant's monthly gross salary of Kshs. 488,330/-, that the dismissal followed due process, and that a terminated employee is not entitled to housing or car benefits under Clause 9.6 of the employment contract. The Claimant relied on Giella v Cassman Brown and authorities on estoppel and prima facie cases; the Respondent filed no submissions. The court, having earlier granted interim stay orders, held that the employment relationship had been severed and there was no reason to warrant the Claimant's continued stay, finding the application without merit. It nonetheless extended the stay to 30th June 2020, after which the Claimant was to vacate, with costs in the cause.

Key legal issues

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01

Entitlement to continued occupation of employer's residence after termination

Holding

The Claimant's continued stay was not warranted once the employment relationship was severed; the court granted only a time-limited extension to 30th June 2020

Reasoning

The court had earlier granted interim orders allowing the Claimant to stay in the premises pending further directions. It then observed that the Claimant sought a six-month stay from January 2020. However, since the employment relationship had been severed, the court found no basis to warrant the Claimant's continued stay and declined to grant further stay, granting only a grace period to the end of June 2020.

p. 3
02

Whether the application disclosed a meritorious case for injunction

Holding

The application was found to lack merit in the circumstances, though a short extension was granted as a grace period

Reasoning

Although the Claimant had sought to invoke the Giella v Cassman Brown principles and estoppel based on an alleged exit package, the court did not make express findings on those doctrines. It instead proceeded on the state of the relationship between the parties, holding that severance of that relationship removed any justification for continued occupation, and confined relief to a limited extension of the existing interim stay.

p. 3

Legal principles established

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  • Upon termination of employment, an ex-employee's entitlement to employer-provided housing ceases with the employment relationship

Court orders

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  1. 1.The interim orders allowing the Claimant to stay in the Respondent's premises were extended only to 30th June 2020
  2. 2.Upon expiry of 30th June 2020, the Claimant to vacate the premises of the Respondent
  3. 3.No further stay of the Claimant in the Respondent's premises beyond 30th June 2020
  4. 4.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(1)
  • Constitution of Kenya, 2010Article 47(1)
  • Employment Act, 2007Section 45(1)
  • Employment Act, 2007Section 46(h)
  • Employment and Labour Relations Court RulesRule 17
  • Gazette Notice No. 6024 of 2018Not specified

Cases cited (6)

  • Giella Vs Cassman Brown
    (1973) EA 358
  • Titus Muiruri Doge Vs Kenya Canners Limited
    (1988) eKLR
  • 748 Air Services Limited Vs Theuri Munyi
    (2017) eKLR
  • Fredrick Saundu Amolo Vs Principal Namanga Mixed Day Secondary School & 2 Others
    (2014) eKLR
  • Jane Consolata Adhiambo Vs Teachers Service Commission & Another
    (2017) eKLR
  • Brown Tsuma Mukanda Vs National Gender and Equality Commission
    (2015) eKLR
Jurisdiction invoked
Article 41(1) and 47(1) of the Constitution of Kenya, 2010; Section 45(1) and 46(h) of the Employment Act, 2007; Rule 17 of the Employment and Labour Relations Court Rules

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, "Santai Punyua Kimakeke v Free the Children [2020] KEELRC 922 (KLR)", Case Analysis (2020). Cause No 81 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/922/eng@2020-05-27

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