Rose Akeyo Mwomo v Association of Sisterhoods of Kenya [2020] KEELRC 1471 (KLR)
The bottom line
#Kenya's Employment Court ruled that ending a contract early over alleged misconduct requires a fair hearing, awarding the employee three months' salary.
What this practically means
#Executive summary
#Key legal issues
#Non-renewal of a term contract versus termination before expiry
Though the Respondent had a right not to renew the expiring contract, the letter of 15/12/2014 showed the contract was being terminated early on grounds of alleged malpractice, not merely non-renewal, rendering the dismissal unfair without a hearing.
The court examined the contract documents and found the Claimant served on a one-year renewable contract expiring 31/12/2014. The 15/12/2014 letter, however, terminated the contract before its due date citing malpractice arising from prior communications. Since the termination was premised on misconduct rather than expiry of term, the employer could not rely on the right of non-renewal and owed the Claimant a hearing, which was denied.
Right to a fair hearing before termination for alleged misconduct
The Claimant was entitled to a hearing on the alleged malpractice and its denial rendered the termination unfair, notwithstanding her response to the show cause letter through counsel being deemed insufficient.
The Respondent argued under Section 44 of the Employment Act that gross misconduct permitted summary dismissal without hearing, and that the Claimant was given an opportunity to respond. The court held that where malpractice is alleged, a hearing is required; the response through her advocate on 30/10/2014 did not satisfy this requirement, and the contract was terminated before its due date without such a hearing.
Appropriate remedy for unfair termination
Three months' salary as compensation, taking into account that the contract was shortly due to expire.
Having found the termination unfair, the court exercised discretion to award compensation equivalent to three months' salary, expressly factoring in that the Claimant's term contract was about to lapse on 31/12/2014. The Claimant had already received one month's salary in lieu of notice and severance pay of Kshs. 146,293.27, but no further reduction appears to have been made on that account.
Legal principles established
#- Where a term contract is terminated before its expiry on grounds of alleged malpractice, the employee is entitled to a hearing before termination
- An employer of an employee on a terms contract has a right not to renew the contract at its expiry
Court orders
#- 1.Award of 3 months' salary as compensation for unfair termination (Kshs. 105,819/=)
- 2.Respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Akeyo Mwomo v Association of Sisterhoods of Kenya [2020] KEELRC 1471 (KLR)", Case Analysis (2020). Cause dated 30th March 2015, filed 31st March 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1471/eng@2020-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.