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ELRCPartially AllowedNot stated in excerpt (Cause filed 16th June 2017)· [2022] KEELRC 324 (KLR)

Jackson Kanigia Myagah v University of Nairobi [2022] KEELRC 324 (KLR)

Employment and Labour Relations Court
14 April 2022
3,626 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court ruled the University of Nairobi unfairly ended a fixed-term contract and must pay the remaining salary, but refused unproven claims.

What this practically means

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Executive summary

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The Claimant, employed by the University of Nairobi from 18th January 2008 on successive one-year fixed-term contracts, sued claiming that his contract, last renewed effective 16th January 2016 to expire on 31st October 2016, was terminated prematurely on 4th March 2016. He sought payment for the remainder of the contract, a certificate of service, a declaration of underpayment, gratuity, costs and interest. The Respondent maintained that the Claimant had attained retirement age and was serving on a post-retirement contract terminated pursuant to Circular OP/CAB2/7A of 14th February 2014. The court framed two issues: whether the termination was unfair and whether the Claimant was entitled to the reliefs sought. Applying Sections 43, 45, 47(5) and 41 of the Employment Act, the court held that the Respondent failed to prove a valid and fair reason: the circular was never availed to the court, it predated the last renewal, and the Respondent's evidence on the ground of termination was contradictory. The court further held that a public institution cannot escape contractual liability by hiding behind a government circular, and that termination without notice or hearing breached Section 41. Termination was therefore substantively and procedurally unfair. On remedies, the court awarded payment for the remainder of the fixed-term contract (Kshs.282,569/=), distinguishing authorities refusing anticipatory benefits since this contract had no termination clause, and ordered a certificate of service under Section 51(1). The underpayment claim failed as unproved special damages, and gratuity was disallowed as neither pleaded nor provided for in the contracts. The Claimant was awarded costs and interest from the date of judgment. Judgment dated 14th April 2022 at Nairobi, delivered by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Whether termination was substantively justified

Holding

Respondent failed to prove a valid and fair reason; the circular was not produced and the grounds were contradictory

Reasoning

The Respondent alleged termination pursuant to Circular OP/CAB2/7A but did not avail a copy to the court. The circular predated the last contract renewal in 2015, and the Respondent's evidence contradicted itself between retirement age and the circular as the ground. On a balance of probabilities, the Respondent failed to demonstrate substantive justification under Sections 45 and 47(5) of the Employment Act.

p. 4
02

Whether the procedure for termination was fair

Holding

Termination without notice or hearing breached Section 41

Reasoning

It was not disputed that the Claimant was not given any hearing. The termination letter took effect with immediate effect, without notice or compliance with Section 41 of the Employment Act. Termination was therefore procedurally unfair.

p. 4
03

Whether the Claimant is entitled to payment for the remainder of the contract

Holding

Yes - the one-year fixed-term contract had no termination clause, so the Claimant had a reasonable expectation to serve until its expiry

Reasoning

Distinguishing cases refusing anticipatory benefits (which involved permanent and pensionable employees whose contracts had termination clauses), this was a one-year contract with no termination clause. The Claimant reasonably expected employment until the contract's end and is entitled to payment for the remainder of the contract.

p. 5
04

Whether the Claimant proved underpayment and gratuity claims

Holding

Both claims declined for failure of proof

Reasoning

Underpayment is a claim for special damages requiring strict proof; the Claimant tendered no tabulation against Regulation of Wages Orders. Gratuity was neither pleaded nor proved, and none of the contracts provided for gratuity, gratuity being payable only where a contract or CBA so provides.

p. 5

Legal principles established

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  • A public institution cannot escape contractual liability by relying on a government circular; a circular cannot alter statutory provisions or render a contract illegal
  • Termination must be both substantively justified and procedurally fair
  • Special damages must be pleaded and strictly proved

Court orders

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  1. 1.Payment of gross salary for the remainder of the contract period Kshs.282,569/=
  2. 2.Respondent to issue the Claimant's Certificate of Service within 30 days
  3. 3.Costs of this suit to the Claimant
  4. 4.Interest at court rates from the date of judgment till payment in full
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim under Sections 43, 45, 47(5), 41 and 51(1))

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Jackson Kanigia Myagah v University of Nairobi [2022] KEELRC 324 (KLR)", Case Analysis (2022). Not stated in excerpt (Cause filed 16th June 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/324/eng@2022-04-14

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