Paul Opiyo Oyoo v Catholic Church Diocese of Ngong & Father John O. Ombasa (Cause 572 of 2017) (Employment and Labour) [2022] KEELRC 594 (KLR)
The bottom line
#A Kenyan court ruled a driver's dismissal unfair because his employer never got the contract signed and never gave him a hearing, awarding three months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Respondent was properly enjoined
He was improperly enjoined; the Claimant was not his employee and he acted in his official capacity for the 1st Respondent
The 2nd Respondent was an employee of the 1st Respondent as Moderator in charge of Human Resource, signed all letters to the Claimant in his official capacity, and testified as the 1st Respondent's witness. The Court found it unclear why he was joined and held he ought not to have been enjoined.
Duration of the contract of employment
The Respondent failed to prove the employment was for a fixed term of one year; the unsigned contract did not bind the Claimant
The Claimant never signed the contract dated 11th March 2016, so its terms did not bind him. Section 9(2) and (3) placed the duty on the employer to have the contract drawn up and consented to. The letter of offer was a mere offer never accepted by signature, and the confirmation letter did not prescribe duration. The Respondent therefore bore the risk of the incomplete documentation.
Whether termination was substantively and procedurally fair
The termination was unfair for want of procedural fairness; the reasons given (poor performance, dishonesty) were never tested through evaluation or a disciplinary hearing
Although framed as non-renewal, the letter gave reasons attributing non-renewal to unexploited mechanic skills and non-accomplishment of tasks, and RW1 confirmed dishonesty contributed. The Claimant was neither evaluated nor taken through a disciplinary process and was not given a chance to defend himself. Payment of one month's salary in lieu of notice undermined the non-renewal characterisation. Section 45(2) requirements were therefore not met.
Reliefs
Most heads of claim declined for want of proof or proof of payment; compensation of three months' salary awarded under Section 49(1)(c)
Terminal dues, March days and leave pay were shown paid per the Respondent's computation; overtime lacked proof; service pay was barred by NSSF membership under Section 35(6)(d). On compensation, the Court considered the one-year length of service, the warning letter of 11th October 2016, and the Claimant's failure to appeal or complain, and fixed compensation at three months' salary.
Legal principles established
#- A termination must pass both the substantive justification test and the procedural fairness test to be fair
- An employer who fails, refuses or neglects to finalise the employment contract documentation and obtain the employee's consent does so at its own risk and bears the attendant consequences
- An employee who does not sign a written contract is not bound by its terms and cannot rely on them
- An employment contract need not be written; it may be oral, written or implied from the conduct of the parties
- An employee who is a member of NSSF is not entitled to service pay
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for the equivalent of three (3) months' salary with costs
- 2.Interest at Court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and labour relations dispute under Article 162(2) of the Constitution; claims arising under the Employment Act (not explicitly cited as jurisdictional basis in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Opiyo Oyoo v Catholic Church Diocese of Ngong & Father John O. Ombasa (Cause 572 of 2017) (Employment and Labour) [2022] KEELRC 594 (KLR)", Case Analysis (2022). Not stated in the judgment (Memorandum of Claim dated 22nd March 2017, filed 24th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/594/eng@2022-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.