TIC v Telkom Kenya Limited (Cause 2200 of 2016) [2022] KEELRC 1175 (KLR)
The bottom line
#A Kenyan court dismissed a watchman's unfair termination claim because his 2006 dismissal was governed by the old Employment Act, which required no reasons or hearing.
What this practically means
#Executive summary
#Key legal issues
#Validity of leave granted to file suit out of time
The Court declined to interfere with the earlier leave extending time, since the medical evidence underpinning that ruling was not before it.
The respondent argued the claim was time barred and that section 30(3) of the Limitation of Actions Act did not apply because the claimant knew of the cause of action. The Court noted the earlier Ruling had been allowed on medical evidence of a disabling schizoaffective illness, but those medical reports were not before it in the present hearing, making re-evaluation impossible. It therefore stood by the prior leave and proceeded to hear the claim on its merits.
Whether the termination was unfair and unlawful
The termination was lawful because it complied with the repealed Employment Act (Cap 226), which required neither reasons nor a hearing; one month's salary in lieu of the 28 days' notice sufficed.
The cause of action arose in 2006, before the Employment Act, 2007, so the repealed Act governed. Section 14(5)(iii) deemed a periodic contract terminable on 28 days' written notice; the claimant received one month's salary in lieu. The claimant responded to the fuel-siphoning allegations in writing and made a statement to the investigation branch; no hearing was required under the repealed Act. Sections 41, 43 and 45 of the 2007 Act were inapplicable.
Legal principles established
#- Under the repealed Employment Act (Cap 226), an employer who terminates a contract by giving notice (or pay in lieu) was not bound to give reasons for the termination, a position different from sections 43 and 45 of the Employment Act, 2007.
- There was no provision for a disciplinary hearing under the repealed Employment Act (Cap 226), so section 41 of the Employment Act, 2007 does not apply to pre-2007 terminations.
- A periodic contract of service governed by section 14(5)(iii) of the repealed Act was terminable by either party on 28 days' notice in writing.
Court orders
#- 1.Dismissal of the claim in its entirety
- 2.No orders as to costs
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court; claim governed by the repealed Employment Act (Cap 226)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ali v Director General, National Youth Service & another (Petition E125 of 2022) [2023] KEELRC 2928 (KLR)[2023] KEELRC 2928 (KLR)16 Nov 2023
Cite this brief
#Cite this brief
Caselaw, "TIC v Telkom Kenya Limited (Cause 2200 of 2016) [2022] KEELRC 1175 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1175/eng@2022-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.