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ELRCPartially AllowedPetition dated February 4, 2020· [2021] KEELRC 6 (KLR)

Kariuki & 4 others v Office of the Auditor General & 2 others (Petition 16 of 2020) [2021] KEELRC 6 (KLR)

Employment and Labour Relations Court
11 June 2021
JRJAMES RIKA
1,724 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 ruled the Auditor-General unlawfully cancelled signed job appointment letters, but probationary staff get only 7 days' notice pay.

What this practically means

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Executive summary

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Five petitioners, describing themselves as Kenyan Youths, petitioned after the Auditor-General (1st respondent) advertised vacancies, interviewed them, issued them signed letters of appointment effective August 15, 2019, and then failed to absorb them. They alleged violations of articles 27, 41 and 47 of the Constitution, seeking declarations of violation, enforcement of the contracts, or compensation for unfair termination. The 1st respondent, through its Deputy Director of Human Resources, replied that the petitioners were unsuccessful in interviews conducted through UNES, that original letters of appointment are issued only upon signing a receipt register, and that no contractual relation arose. The 2nd and 3rd respondents opposed on grounds that the dispute was contractual dressed as constitutional, that the appropriate remedy lay in judicial review under the Fair Administrative Action Act, and that they had been improperly joined. The court agreed the matter was mainly contractual and determined it under the Employment Act and the alleged contracts. It found the letters of appointment, signed by the Auditor-General himself, valid and binding under sections 9 and 10 of the Employment Act. The unilateral annulment of the executed letters, without reference to any contractual clause, statutory provision or exhibited HR policy, was unlawful. However, the contracts were probationary and terminable by 7 days' notice or salary without a hearing, so no compensation for unfair termination lay. The court granted notice pay of Kshs 25,576 to each of the first four petitioners and Kshs 12,030 to the fifth (an Office Assistant), awarded costs against the 1st respondent, and declined the petition against the 2nd and 3rd respondents with no order on costs.

Key legal issues

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01

Whether the petitioners had valid contracts of employment

Holding

Yes - the letters of appointment signed by the Auditor-General and the petitioners were valid contracts under sections 9 and 10 of the Employment Act

Reasoning

The vacancies were advertised, the petitioners applied, were interviewed and were successful. Letters of appointment were signed by the Auditor-General himself, contained personal details, job descriptions, commencement dates and remuneration. These elements satisfy the statutory requirements for a valid contract under sections 9 and 10 of the Employment Act, regardless of internal HR process irregularities.

p. 5
02

Whether the annulment of the letters was lawful

Holding

No - unilateral annulment without contractual or statutory basis was unlawful

Reasoning

The Auditor-General annulled the letters citing Human Resource Policies and Procedures, but did not identify any clause in the contracts, the Employment Act, or the policies justifying annulment of executed letters, nor were the policies exhibited. Termination of existing contracts must follow the termination clause and the Employment Act.

p. 2
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Whether this was a constitutional dispute

Holding

No - it is mainly a contractual dispute to be resolved under the Employment Act and the contracts

Reasoning

The court agreed with the 2nd and 3rd respondents that the grievance was contractual. The Employment Act and the contracts afford adequate remedy; only if no remedy existed there would the petitioners be justified in invoking the Constitution.

p. 4

Legal principles established

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  • Executed letters of appointment satisfying sections 9 and 10 of the Employment Act are valid contracts, terminable only per the termination clause and the Employment Act
  • Probationary contracts are terminable by 7 days' notice or salary without a hearing or reasons
  • Simple contractual grievances should not be bloated into constitutional disputes

Court orders

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  1. 1.Declared that the contracts of employment executed by the petitioners and the 1st respondent were valid, and were unlawfully terminated by the 1st respondent
  2. 2.1st respondent to pay 1st-4th petitioners 7 days' salary each as notice at Kshs 25,576; and Kshs 12,030 to the 5th petitioner
  3. 3.Costs to the petitioners to be paid by the 1st respondent
  4. 4.Petition against the 2nd and 3rd respondents declined with no order on the costs

Authorities

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Legislation

  • Constitution of Kenya, 2010articles 27, 41, 47, 252(1)(c)
  • Employment Act 2007sections 9, 10, 42[4]
  • Fair Administrative Action Actsection 7
Jurisdiction invoked
Articles 27, 41 and 47 of the Constitution; Employment Act 2007

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, "Kariuki & 4 others v Office of the Auditor General & 2 others (Petition 16 of 2020) [2021] KEELRC 6 (KLR)", Case Analysis (2021). Petition dated February 4, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/6/eng@2021-06-11

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