Ezra Kibet Biegon v Biojoule Kenya Limited [2022] KEELRC 160 (KLR)
The bottom line
#A Kenyan court ruled that an employer cannot undo a termination with a recall letter, awarding an unfairly dismissed worker over Kshs. 550,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the recall letter of 27th July 2016 could revive the terminated contract
It could not; the contract ended upon termination and any re-employment required a fresh contract accepted by both parties
The court held that upon the Claimant receiving the letter of termination on 15th July 2016, the contract of employment came to an end. The Respondent's purported unilateral reversal by letter could not bind the Claimant, and his failure to report back on 7th August 2016 was of no effect since no binding contract existed at the time. Re-employment would have required a fresh contract.
Whether the termination of 15th July 2016 was lawful
It was unlawful, being a termination on account of redundancy effected without notice and without complying with section 40 of the Employment Act
The Respondent terminated the Claimant's services on account of reorganization, which amounted to redundancy as defined under section 2 of the Employment Act. The Respondent gave no notice and followed none of the conditions in section 40, including notification of the labour officer, one month's notice or wages in lieu, and severance pay. The termination was therefore without due process and unfair.
Whether the subsequent handling of the Claimant's absence constituted a lawful termination for desertion under section 44
The claim under section 44 failed because there was no subsisting contract; the letter of 1st September 2016 could not terminate a contract that had already ended
The Respondent argued that the Claimant deserted duty by failing to report back as recalled, justifying termination under section 44 of the Employment Act with notification of the labour officer. The court did not accept this because the contract had been terminated on 15th July 2016 and could not be resurrected unilaterally, so the Claimant's failure to report was of no legal effect.
Legal principles established
#- Once employment is terminated, the contract comes to an end and an employer cannot unilaterally reverse the termination; re-employment requires a fresh contract accepted by both parties
- Termination on account of redundancy must comply with the procedure under section 40 of the Employment Act
Court orders
#- 1.Payment of 12 months' salary as compensation for the unlawful termination (Kshs. 480,000)
- 2.Payment of house allowance not paid for 1 year (15% x 40,000 x 12 months = Kshs. 72,000)
- 3.Total award of Kshs. 552,000 less statutory deductions
- 4.Respondent to pay costs of the suit plus interest at Court rates with effect from the date of the Judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ezra Kibet Biegon v Biojoule Kenya Limited [2022] KEELRC 160 (KLR)", Case Analysis (2022). Cause No. 4 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/160/eng@2022-04-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.