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ELRCPartially AllowedCause No. 84 of 2017· [2022] KEELRC 274 (KLR)

Joseph Kiplangat Koech v County Government of Mandera [2022] KEELRC 274 (KLR)

Employment and Labour Relations Court of Kenya
21 April 2022
3,802 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan county wrongfully fired an employee for 'desertion' while he was lawfully seconded elsewhere, and must pay him over Kshs 3 million.

What this practically means

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Executive summary

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The Claimant, a clerical officer employed in 1993 by the defunct Nakuru County Council and later transferred through various local authorities to Mandera County Government, was deployed by the Transition Authority to Kericho County Government in April 2013 and released back to Mandera by letter dated 10th December 2014. He reported to Mandera in March 2015 but was told deployment was still under consultation. On 24th June 2015, instead of a deployment letter, he received a termination letter on grounds of desertion of duty. The Respondent defended the claim, contending the Claimant deserted duty from December 2014 to June 2015, never handed over properly, and unlawfully drew salary from Mandera while seconded to Kericho. The Claimant argued the desertion allegation was baseless since his absence was explained by secondment and illness, and that he was constructively dismissed. The court found the Transition Authority's secondment letter expressly provided that the Claimant would continue drawing his salary from Mandera County, so the continued payment was not illegal, and the failure to copy the PSC letter to the Respondent was not a mistake to be visited on the Claimant. The show cause letter was premised on the wrong notion that he had absconded. The court held the dismissal on account of desertion wrong and illegal, awarded maximum compensation of Kshs.1,144,560 (twelve months' salary), Kshs.2 million as constitutional damages, converted the termination into retirement with attendant benefits, and awarded costs plus interest. Relief in the form of reinstatement or prospective earnings of Kshs.9,919,520 was not granted as such. Judgment delivered on 21st April 2022.

Key legal issues

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01

Whether the Claimant deserted duty from December 2014 to June 2015

Holding

The court held the Claimant did not desert duty; his absence was explained by secondment to Kericho County Government and illness, so the desertion-based dismissal was wrongful

Reasoning

The Transition Authority had deployed the Claimant to Kericho County by letter dated 23/4/2013 and released him back to Mandera on 10/12/2014. The letter deploying him indicated he would continue drawing salary from Mandera. The Respondent's show cause letter assumed desertion when the Claimant was in fact seconded. The failure to copy the PSC letter to the Respondent was not a mistake to be visited on the Claimant. His payslips confirmed continued payment by Mandera.

p. 5
02

Whether the dismissal violated the Claimant's constitutional rights under Articles 27, 28 and 41 of the Constitution

Holding

The court found a breach of constitutional rights in employment and awarded Kshs.2 million in damages

Reasoning

Having found the termination on account of desertion wrongful and illegal, and given the Claimant lost out on future earnings, the court found the Respondent breached the Claimant's constitutional rights in employment and awarded Kshs.2 million in damages in addition to the maximum 12 months' compensation under section 49 of the Employment Act.

p. 5
03

Whether the Claimant is entitled to compensation for unlawful and unfair termination

Holding

The court awarded maximum compensation of twelve months' gross salary under section 49 of the Employment Act, computing Kshs.1,144,560

Reasoning

The court found for the Claimant and, because he lost out on his future earning, granted the maximum compensation of twelve months' gross salary (12 x Kshs.95,380 = Kshs.1,144,560), and further converted the termination into a retirement with attendant retirement benefits rather than reinstatement.

p. 5

Legal principles established

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  • Where an employee is lawfully seconded away from the employer, the employer cannot treat the employee as having deserted duty; a show cause letter premised on that lawful secondment is founded on a wrong notion and any dismissal flowing from it is wrongful
  • A failure by an authority to copy a deployment letter to the employer cannot be visited upon the employee
  • Continued payment of salary to a seconded employee by the parent county is lawful where the secondment letter so provides

Court orders

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  1. 1.Declaration that the Claimant be paid maximum compensation for unlawful and unfair termination of Kshs.1,144,560 (12 months' salary at Kshs.95,380)
  2. 2.Order that the Claimant be paid Kshs.2 million as damages for breach of his constitutional rights in employment
  3. 3.Total award of Kshs.3,144,560 less statutory deductions
  4. 4.Conversion of the termination into a retirement with attendant retirement benefits
  5. 5.Respondent to pay costs of the suit plus interest at court rates with effect from the date of the Judgment

Authorities

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Legislation

  • Constitution of KenyaArticles 23, 27, 28, 41
  • Employment ActSections 35, 36, 38, 41, 43, 44(4)(a), 45, 49
  • County Government ActSections 135, 138
  • Cities and Urban Areas ActSection 57

Cases cited (8)

  • Coca Cola East and Central Africa v Maria Kagai Ligaga
    [2015] eKLR
  • Ezra Nyamweya Motari v Kanini Haraka Enterprises Limited
    [2016] eKLR
  • Mary Nyangasi Ratemo & 9 others v Kenya Police Staff Sacco Limited and another
    [2013] eKLR
  • VMK v Catholic University of East Africa
    [2013] eKLR
  • Jonathan Spangler v Center for Africa Family Studies (CAFS)
    [2017] eKLR
  • Joseph Nzioka v Smart Coatings Limited
    [2017] eKLR
  • Kenneth Onialo v Majlis Resort Lamu t/a Majlis Lamu Limited
  • Jaswinder Kaur Ghataanura v Naredrasing R. Mahinda & Another
    (2013) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (Employment and Labour Relations Court jurisdiction) - claim for unfair termination under the Employment Act

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, "Joseph Kiplangat Koech v County Government of Mandera [2022] KEELRC 274 (KLR)", Case Analysis (2022). Cause No. 84 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/274/eng@2022-04-21

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