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ELRCPartially Allowed· [2022] KEELRC 234 (KLR)

Mbarak Abdulqadir Abdalla v County Government of Lamu & County Public Service Board, Lamu County [2022] KEELRC 234 (KLR)

Employment and Labour Relations Court
31 March 2022
3,087 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, engaged by the 2nd Respondent by letter dated 25th September 2014 as Chief of Staff of the Governor of the 1st Respondent on a four-year term commencing 1st September 2014 at a gross monthly salary, challenged his termination. He learned in November 2017 that he had been terminated by an 'end of contract' letter dated 17th August 2017, issued after the Governor failed re-election in August 2017. The Respondents contended that under clause B 20 of their 2017 human resource manual, personal staff of specified state officers serve only during the tenure of such officers, so his contract lawfully ended with the Governor's term, and he was paid salary in lieu of notice. The court framed two issues: the lawfulness of the termination and the remedies, if any. Holding the appointment letter clear and unambiguous as to the four-year term, the court found the 2017 manual could not be imported into the contract: clause B 20 applied only to personal staff of state officers specified by the 2nd Respondent, no evidence showed such specification, the manual postdated the contract and could not operate retroactively, and there was no consultation with the Claimant as section 10(5) of the Employment Act requires. Reliance on the manual amounted to an unlawful unilateral variation of the contract. There was also no substantive ground under section 41, and procedural strictures were not observed. The termination was declared unlawful. Guided by sections 49 and 51, and noting the Claimant's mitigation through alternative employment in December 2017, the court awarded compensation equivalent to five months' gross salary (Ksh1,303,300/=, less applicable taxes), interest at court rates from filing, a Certificate of Service, and costs to the Claimant.

Key legal issues

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01

Whether the 2017 Human Resource Manual could be relied upon to terminate a 2014 contract at the expiry of the Governor's term

Holding

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.

Reasoning

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.

02

Whether the termination was substantively and procedurally lawful under the Employment Act

Holding

The termination was wrongful - there was no substantive ground under section 41 and the procedural strictures of the Act were not observed.

Reasoning

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.

p. 3
03

What remedies the Claimant was entitled to

Holding

A global award of damages equivalent to five months' gross salary (Ksh1,303,300/=), interest, a Certificate of Service, and costs.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Declared the Respondents' termination of the Claimant's contract of employment unlawful
  2. 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. 3.Awarded interest on the amount at court rates from the date of institution of the case till payment in full
  4. 4.Ordered the Respondents to issue the Claimant with a Certificate of Service under section 51 of the Employment Act
  5. 5.Awarded the Claimant costs of the case

Authorities

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Legislation

  • Employment Actsection 10
  • Employment Actsection 10(5)
  • Employment Actsection 41
  • Employment Actsections 49 and 51
  • Constitution of Kenyaright to fair labour practices
  • ELRC Procedure RulesRule 28(3)

Cases cited (7)

  • National Bank of Kenya Limited v Hamida Bana & 103 others
    [2017] eKLR
  • County Government of Migori v Hope Self Help Group
    [2020] eKLR
  • James Ang'awa Atanda & 10 others v Judicial Service Commission
    [2017] eKLR
  • Kukal Properties Development Ltd v Tafazzal H. Maloo & 3 others
    [1993] eKLR (Nairobi Civil Appeal 155 of 1992)
  • Churchill Ongalo v K. K. Security Limited
    [2014] eKLR
  • Kenya Union of Journalists v The Standard Group Limited
    ELRC cause no 746 of 2009 (unreported)
  • Mariam Sensalire v African Institute for Capacity Development
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 10, 41, 49 and 51 cited)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.