Joseph Kiplangat Koech v County Government of Mandera [2022] KEELRC 274 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant deserted duty from December 2014 to June 2015
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
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.
Whether the dismissal violated the Claimant's constitutional rights under Articles 27, 28 and 41 of the Constitution
The court found a breach of constitutional rights in employment and awarded Kshs.2 million in damages
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.
Whether the Claimant is entitled to compensation for unlawful and unfair termination
The court awarded maximum compensation of twelve months' gross salary under section 49 of the Employment Act, computing Kshs.1,144,560
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.
Legal principles established
#- 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
#- 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.Order that the Claimant be paid Kshs.2 million as damages for breach of his constitutional rights in employment
- 3.Total award of Kshs.3,144,560 less statutory deductions
- 4.Conversion of the termination into a retirement with attendant retirement benefits
- 5.Respondent to pay costs of the suit plus interest at court rates with effect from the date of the Judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution (Employment and Labour Relations Court jurisdiction) - claim for unfair termination under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.