Gangla v Linksoft Intergrated Services (EA) Ltd & another (Cause 36 of 2017) [2023] KEELRC 397 (KLR)
The bottom line
#Kenya's Employment Court in Nakuru found the worker's dismissal unfair, awarding modest dues against the company that had taken over his employment by consent.
What this practically means
#Executive summary
#Key legal issues
#Identity of the employer and liability
The 2nd Respondent was the employer under the February 3, 2015 contract, but liability for dues arising after January/February 2016 falls on the 1st Respondent by virtue of the consent in CMCC No. 4943 of 2016
The written contract named Career Directions Ltd (2nd Respondent) as employer, seconding the Claimant to GDC. However, the parties' consent in Milimani Civil Suit No. 4943 of 2016 required the 1st Respondent to handle all issues for staff seconded to GDC and to indemnify the 2nd Respondent from claims in that period. That consent was never appealed or impugned as fraudulent or coerced, so it binds the Respondents and the 1st Respondent bears liability.
Fairness of termination
The termination was unfair; no notice or due process was accorded
The 1st Respondent issued the termination letter of June 15, 2016 after the consent order. No notice was given. The court awarded one month's salary as compensation, taking into account that the exhibited fixed-term contract had expired in April 2016 and the Claimant was serving on an unexhibited new contract. One month's salary in lieu of notice was also awarded.
House allowance
Not payable for the original contract period (all-inclusive salary) but payable at 15% for the post-April 2016 period
The February 2015 contract stated a salary of Kshs 36,500 all inclusive, so no house allowance arises for that period. For the period after the expiry of the fixed-term contract (April 12 to June 15, 2016), the court found the Claimant entitled to house allowance at 15% of salary for two months, computed at Kshs 10,950.
Legal principles established
#- A consent order of court, not appealed and not shown to be fraudulent or coerced, binds the parties and indemnifies the party protected by it
- Termination without notice or due process renders the terminating employer liable to compensation
Court orders
#- 1.1 month's salary as compensation for the unfair termination
- 2.1 month's salary in lieu of notice
- 3.2 months' salary (14th April to June 15, 2016) at 15% of salary as house allowance
- 4.Payment of NHIF & NSSF dues deducted and not remitted
- 5.All outstanding leave not taken
- 6.Issuance of a Certificate of Service
- 7.Costs of the suit to be borne by the 1st Respondent
- 8.Parties to calculate the dues and record them as part of the judgment, failing which the court may give further directions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (first-instance unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gangla v Linksoft Intergrated Services (EA) Ltd & another (Cause 36 of 2017) [2023] KEELRC 397 (KLR)", Case Analysis (2023). ELRC Cause (test suit) considered with Cause Nos 3, 39, 40, 41, 54, 55, 56, 86, 87, 88, 132, 161, 410 and 411 all of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/397/eng@2023-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.