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ELRCPartially AllowedCause No 2168 of 2015· [2020] KEELRC 1486 (KLR)

Peter Mutungwa Ngalu v Centre for Wildlife Management Studies Ltd [2020] KEELRC 1486 (KLR)

Employment and Labour Relations Court
28 February 2020
1,486 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed a 2006 dismissal wrongful for lack of notice, awarding notice pay and accrued leave but rejecting multi-million shilling retirement-earnings claims.

What this practically means

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Executive summary

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Peter Mutungwa Ngalu sued Centre for Wildlife Management Studies Ltd for wrongful dismissal and breach of contract, proceedings commenced in the High Court on 20 July 2006 and transferred to the Employment and Labour Relations Court by order of 17 July 2015, with hearing commencing afresh in 2019. The Claimant alleged employment from 1986/1987 under the School for Field Studies, whose name the Respondent assumed in 1996, and summary dismissal by letter of 1 April 2006 on grounds of fraudulent financial transactions. He contended the real reason was reduced operations following a 2003 US travel advisory. The Court found, on secondary records and sworn testimony, that the Respondent was an agent/factor and successor of the School for Field Studies and that the Claimant was engaged in 1986. Applying the law as it stood in 2006, when an employer could dismiss for any reason provided contractual notice or pay in lieu was given and no general damages lay for wrongful dismissal, the Court held the summary dismissal wrongful because no notice was given, awarding one month's pay in lieu (US$ 1,404). The Court found 3 months' accrued leave proved (US$ 4,212) but rejected severance pay (no redundancy), lost earnings to retirement (unattainable in law, following Bank of Uganda v Tinkamanyire), and general damages. The Respondent was directed to facilitate access to the Claimant's 403b retirement benefits. Total award: US$ 5,616, with costs to the Claimant on a half-scale.

Key legal issues

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01

Existence and start date of the employment relationship

Holding

The Respondent was an agent/factor and successor of the School for Field Studies, and the Claimant was engaged in 1986

Reasoning

The Respondent admitted a relationship with the School for Field Studies, which the Claimant said changed its name in 1996. No formal contract prior to 2000 was produced, but secondary records dating from 5 April 1986 and the Claimant's sworn testimony, corroborated by a former colleague, satisfied the Court that the relationship predated 2000 and that the Respondent, as successor/factor, was liable.

p. 2
02

Whether the summary dismissal was wrongful

Holding

The summary dismissal was wrongful; the Claimant was entitled to 1-month notice or pay in lieu

Reasoning

The Claimant was sent on compulsory leave on 15 March 2006 after a financial audit established questionable transactions, then summarily dismissed on 1 April 2006 for fraudulent financial transactions. The Court found the separation was for alleged financial fraud, not operational reasons. Under the law then applicable, no hearing was required unless contractual, but notice or pay in lieu was; the contract had no termination clause, so one month's pay in lieu was awarded.

p. 2
03

Accrued annual leave

Holding

The Claimant had accrued leave of 3 months at separation and was entitled to 3 months' salary in lieu (US$ 4,212)

Reasoning

Annual leave with full pay is a statutory entitlement. The Claimant explained that he could not take leave unless the Centre Director was available. The Respondent relied on the Claimant's letter of 19 April 2006 demanding the balance of 3 months out of 4 months pending leave, which the Court treated as an admission undermining the larger claim of nearly two decades' accumulation.

p. 3
04

Pension/retirement benefits

Holding

The Respondent should facilitate the Claimant to obtain his retirement benefits under the 403b program

Reasoning

The employment agreement provided for a retirement program under 403b, though its particulars were not disclosed in Court. Since the contract provided for a retirement program, the Court directed the Respondent to facilitate the Claimant's access to his benefits as soon as practicable, without quantifying an award.

p. 3

Legal principles established

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  • It is ordinarily the responsibility of the employer to prepare and issue an employment contract
  • Under the pre-2007 law, an employer could dismiss for any reason provided contractual notice or pay in lieu was given; general damages for wrongful dismissal were not available
  • A prematurely or illegally terminated employee is not compensatable for the remainder of the period to retirement

Court orders

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  1. 1.Declaration that the summary dismissal of the Claimant was wrongful
  2. 2.Award of 1-month pay in lieu of notice of US$ 1,404
  3. 3.Award of accrued leave equivalent to 3 months' salary of US$ 4,212
  4. 4.Total award of US$ 5,616
  5. 5.Respondent to facilitate the Claimant to access his retirement benefits under the 403b program as soon as practicable
  6. 6.Costs to the Claimant on a half-scale

Authorities

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Cases cited (1)

  • Bank of Uganda v Tinkamanyire
    (2009) 2 EA 66
Jurisdiction invoked
Employment and Labour Relations Court, suit transferred from the High Court on 17 July 2015

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, "Peter Mutungwa Ngalu v Centre for Wildlife Management Studies Ltd [2020] KEELRC 1486 (KLR)", Case Analysis (2020). Cause No 2168 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1486/eng@2020-02-28

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