Mbarak Abdulqadir Abdalla v County Government of Lamu & County Public Service Board, Lamu County [2022] KEELRC 234 (KLR)
The bottom line
#A Kenyan court ruled that a 2017 HR manual could not be used to end a Chief of Staff's 2014 contract early, awarding him over Ksh1.3 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2017 Human Resource Manual could be relied upon to terminate a 2014 contract at the expiry of the Governor's term
No. The letter of appointment was clear and unambiguous - a four-year term - and the manual's clause B 20 only applies to personal staff of state officers specified by the 2nd Respondent, with no evidence of such specification nor of incorporation of the manual into the contract.
The appointment letter specified a four-year term commencing 1 September 2014 and did not refer to a human resource manual. Clause B 20 applies only to personal staff of state officers 'as determined by the Board from time to time', and no evidence showed the 2nd Respondent had specified the Governor. The manual, authored in 2017, could not retroactively affect a 2014 contract without express provision or the employee's consent. Reliance on it amounted to an unlawful unilateral variation of the contract.
Whether the termination was substantively and procedurally lawful under the Employment Act
The termination was wrongful - there was no substantive ground under section 41 and the procedural strictures of the Act were not observed.
Having found the legal foundation for the termination wanting, the court held that outside the purported justification based on the 2017 manual there was no substantive ground for termination under section 41 of the Employment Act, and the procedural requirements for fair release from employment were not observed by the Respondents. The termination was accordingly declared wrongful and unlawful.
What remedies the Claimant was entitled to
A global award of damages equivalent to five months' gross salary (Ksh1,303,300/=), interest, a Certificate of Service, and costs.
Guided by sections 49 and 51 of the Employment Act, the court held it was not bound to award all reliefs under section 49. Considering the remaining one year of the contract, the inhumane manner of the termination (the Claimant learned of it only in November 2017), but also his prompt mitigation through alternative employment in December 2017, a global award of five months' salary sufficed. A Certificate of Service was also due under section 51.
Legal principles established
#- A human resource manual cannot be imported into a written contract of employment unless expressly incorporated into the contract
- A subsequent instrument cannot retroactively and unilaterally vary the terms of an existing written contract of employment without the employee's consultation and consent
Court orders
#- 1.Declared the Respondents' termination of the Claimant's contract of employment unlawful
- 2.Awarded compensation for wrongful termination equivalent to five months gross salary, totalling Ksh1,303,300/=, less applicable taxes under section 49 of the Employment Act
- 3.Awarded interest on the amount at court rates from the date of institution of the case till payment in full
- 4.Ordered the Respondents to issue the Claimant with a Certificate of Service under section 51 of the Employment Act
- 5.Awarded the Claimant costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 10, 41, 49 and 51 cited)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Abdi v Governor, Kakamega County Government & 2 others; Maloba (Interested Party) (Employment and Labour Relations Petition 3 of 2023) [2023] KEELRC 1971 (KLR)[2023] KEELRC 1971 (KLR)27 Jul 2023
- Nzioki v Safaricom PLC (Cause E252 of 2021) [2023] KEELRC 722 (KLR)[2023] KEELRC 722 (KLR)23 Mar 2023applied
Cite this brief
#Cite this brief
Caselaw, "Mbarak Abdulqadir Abdalla v County Government of Lamu & County Public Service Board, Lamu County [2022] KEELRC 234 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/234/eng@2022-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.