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ELRCPartially Allowed· [2022] KEELRC 164 (KLR)

Langat v County Public Service Board Kericho County & 2 others (Employment and Labour Relations Cause E016 of 2021) [2022] KEELRC 164 (KLR)

Employment and Labour Relations Court
22 April 2022
2,309 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, appointed Chief Officer Water and Natural Resources by Kericho County in November 2017 on a five-year contract, was dismissed on 9 May 2019 after a disciplinary process. He sued for a declaration that the termination was unlawful, damages, notice pay, a certificate of service and costs. The respondents filed no defence; their counsel argued after the hearing that the appointment was itself illegal for non-compliance with section 45 of the County Governments Act, that an illegal contract is unenforceable, and that the letter of 9 May 2019 was not a dismissal. The court framed three issues: legality of the appointment, fairness of the termination, and reliefs. It held the illegality submission was unsupported by any pleading or evidence and was mere allegation from the bar, finding the claimant lawfully appointed. On termination, the court applied sections 43 and 45 of the Employment Act: the employer bore the burden of proving valid reasons and fair procedure and failed on both. The charges were generalised, the claimant's request for particulars and supporting documents was ignored, and no evidence rebutted his account. The dismissal was declared unfair and unlawful. On reliefs, the court awarded one month's notice pay (Kshs 199,110) and four months' salary compensation (Kshs 796,440), totaling Kshs 995,550, subject to statutory deductions, plus a Certificate of Service, costs and interest from the date of judgment. Salary for the unexpired contract term was refused because the claimant mitigated his loss through re-employment and there was no legal or contractual basis for it. Judgment was delivered online under the Covid-19 directives with the parties' consent.

Key legal issues

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01

Whether the claimant's appointment as Chief Officer was illegal for non-compliance with sections 45 and 46 of the County Governments Act

Holding

The appointment was lawful; the respondents produced no pleadings or evidence to prove illegality, and the County Public Service Board did not deny participating in the recruitment

Reasoning

The respondent's contention that the appointment breached section 45 of the County Governments Act was raised only in submissions without a defence or affidavit. The court held such allegations were mere statements from the bar, and absent evidence from the Governor or the Board, found the claimant was lawfully appointed under section 45.

p. 4
02

Whether the termination was grounded on valid and fair reasons

Holding

The dismissal was unfair because the respondent failed to discharge the burden under sections 43 and 45 of proving valid and fair reasons

Reasoning

The termination letter did not state reasons; the charges in the disciplinary letter were generalised. The claimant's unrebutted evidence showed his request for particulars and supporting documents was ignored. Under section 43, the employer must prove reasons for termination, failing which the termination is deemed unfair.

p. 4
03

Whether a fair procedure was followed under section 41 of the Employment Act

Holding

Fair procedure was not followed; the claimant was denied particulars and supporting documents needed to defend himself

Reasoning

The employer served a show cause letter with generalised allegations; the claimant requested particulars and documentary evidence but received none, then faced a disciplinary committee that ignored his request. The court agreed the dismissal was therefore not in accordance with fair procedure.

p. 5
04

What reliefs flow from the unfair termination

Holding

Declaration of unfair termination, one month's notice pay, 4 months' salary compensation, Certificate of Service, costs and interest; salary for the unexpired contract refused on grounds of mitigation

Reasoning

Having found no valid reason and no fair procedure, the court declared the dismissal unlawful. It awarded 4 months' salary rather than the maximum 12 months because the claimant obtained alternative employment, plus notice pay, and declined the remaining contract salary since the loss was mitigated.

p. 5

Legal principles established

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  • Under section 43 of the Employment Act the employer bears the burden of proving the reasons for termination, failing which the termination is deemed unfair
  • An employer must accord an employee fair procedure under section 41, including explaining the reasons and furnishing particulars and supporting documents where requested, before termination
  • Unsubstantiated submissions by counsel without pleadings or evidence cannot establish that an appointment was illegal

Court orders

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  1. 1.Declaration that the dismissal of the claimant was unfair and therefore unlawful
  2. 2.One month's salary in lieu of notice of Kshs 199,110
  3. 3.Compensation for unfair termination of 4 months' salary, Kshs 796,440 (total award Kshs 995,550)
  4. 4.Claimant to be issued with a Certificate of Service
  5. 5.Awards subject to statutory deductions
  6. 6.Interest at court rates from the date of judgment
  7. 7.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Actsections 41, 42(1), 43, 45, 77
  • County Governments Actsections 45, 46
  • Constitution of Kenyachapter six
  • ELRC Procedure RulesRule 28(3)

Cases cited (6)

  • Nicholas Muasya Kyule V Farnham Limited
    [2012] e KLR
  • Kennedy Muriuki Gichangi - V - County Government of Kirinyaga
    [2019] e KLR
  • Joshua Otiego Apiyo v Modern Costs express td
    [2019] e KLR
  • D. Njogu & Company Advocate v National Bank of Kenya Ltd
    [2016] e KLR
  • Mistry Amaa Singh v Servabe Wafunira
    [1963] E. A 409
  • Lakhan v Vailtia
    [1955] E.A 454
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act No. 11 of 2007 (suit for unfair termination; Certificate of Service claimed under section 77)

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, "Langat v County Public Service Board Kericho County & 2 others (Employment and Labour Relations Cause E016 of 2021) [2022] KEELRC 164 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/164/eng@2022-04-22

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