Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 1562 of 2017· [2022] KEELRC 638 (KLR)

Jenipher Achieng Ouko & 13 others v University of Nairobi [2022] KEELRC 638 (KLR)

Employment and Labour Relations Court
23 February 2022
AMAnna Ngibuini Mwaure
4,040 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled the University of Nairobi unlawfully terminated 14 workers through outsourcing without following the mandatory redundancy process.

What this practically means

#

Executive summary

#
Fourteen former cleaning staff of the University of Nairobi sued for unlawful and wrongful termination after the University outsourced cleaning services. The Claimants, led by Jenipher Achieng Ouko, testified they worked for the University for periods of three to twenty-three years without appointment letters, leave, house allowance, medical benefits, uniforms or commuter allowance, and that on 1st January 2019 they were told there was no work for them as a company had been contracted. They claimed terminal dues for unlawful termination. The Respondent denied the claims, describing the Claimants as term employees on consolidated salary, but produced no documents evidencing the dates or terms of their contracts. The court, per Anna Ngibuini Mwaure J, held that under Sections 9 and 10(7) of the Employment Act the burden of proving contract terms lies with the employer; absent documentation, and given monthly payment, the Claimants were service contract employees, not casuals. Their termination without the mandatory Section 40 redundancy procedure - including one month's written notice - was unlawful and unprocedural. The court awarded each Claimant one month's notice pay, annual leave, house allowance and service gratuity at 15 days per completed year, with interest, costs and certificates of service within 30 days. General damages, commuter and leave travelling allowances and uniform refunds were declined as unproved special damages. Judgment was delivered virtually pursuant to COVID-19 directives.

Key legal issues

#
01

Nature of the employment relationship (casual vs term vs service contract)

Holding

The Claimants were service contract employees entitled to statutory dues, since casual employment converts to a service contract after a month or monthly payment and the Respondent produced no documents showing contract terms

Reasoning

Neither party produced appointment letters or contract documents. The employer is statutorily required to keep records of employment. Section 10(7) places the burden of proving contract terms on the employer where no written particulars exist. The Claimants were paid monthly, and casual employment converts to a service contract after a month or monthly wages, so the court found them to be service contract employees entitled to Employment Act dues.

p. 2
02

Whether termination by outsourcing without redundancy notice was unlawful

Holding

The termination was unlawful and unprocedural because the Respondent did not follow the mandatory redundancy process under Section 40 of the Employment Act

Reasoning

The Claimants reported to work on 1st January 2019 and were told there was no work as a company had been contracted. They received no notice that their positions would be filled. Section 40 requires written notice of at least one month before declaring redundancy. Following Jane I Khalechi v Oxford University Press, these principles are mandatory. The Respondent totally failed to follow the process, rendering the termination unlawful.

p. 3
03

Alleged discrepancy in the date of termination

Holding

No discrepancy existed; the Respondent's own witness admitted the Claimants left employment around 23rd December 2018

Reasoning

The Respondent argued the pleadings showed 14th March 2017 as the outsourcing memo date, not the termination date. Paragraph 4 of the memorandum of claim referred to the issuance of the outsourcing memo, not termination. The Respondent's witness admitted in evidence that the Claimants left employment around 23rd December 2018, corroborating the Claimant's evidence that they left during the Christmas holiday.

p. 3

Legal principles established

#
  • The employer bears the statutory duty to draw up and keep written particulars of employment, and where the employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment falls on the employer
  • Casual employment converts to a service contract where wages are paid monthly or the period worked amounts in aggregate to one month
  • The redundancy procedure under Section 40 of the Employment Act, including notification in writing at least one month in advance, is mandatory and cannot be left to the employer's choice

Court orders

#
  1. 1.Judgment entered in favour of the 14 Claimants against the Respondent for unlawful and wrongful termination
  2. 2.Each Claimant awarded one month's salary in lieu of notice (Kshs.14,229/=)
  3. 3.Each Claimant awarded annual leave for completed years of service
  4. 4.Each Claimant awarded house allowance for the duration worked
  5. 5.Each Claimant awarded service gratuity at 15 days for each completed year of service
  6. 6.Certificate of service to be issued to each Claimant within 30 days
  7. 7.Interest at court rates from the date of judgment till final payments
  8. 8.Costs awarded to the Claimants

Authorities

#

Legislation

  • Employment Act, 2007Section 9(2)
  • Employment Act, 2007Section 10(7)
  • Employment Act, 2007Section 35(1)(c)
  • Employment Act, 2007Section 37
  • Employment Act, 2007Section 40
  • Employment Act, 2007Section 45
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (1)

  • Jane I Khalechi vs Oxford University Press EA Limited
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (memorandum of claim under the court's cause procedure)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jenipher Achieng Ouko & 13 others v University of Nairobi [2022] KEELRC 638 (KLR)", Case Analysis (2022). Cause No. 1562 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/638/eng@2022-02-23

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