Isindu & 2 others v West Kenya Sugar Company Limited (Employment and Labour Relations Claim 19 of 2017) [2023] KEELRC 1090 (KLR)

Clause 1 of the letters of employment confirmed a two-year fixed term while clause 2 stated one year ending January 31, 2016, and the service bond was also for one year. The court found the contracts contradictory and, because they were drafted by the employer, construed the ambiguity against the employer in favour of the employees. The claimants were also paid for two months into the second year, supporting the two-year reading. The authorities cited by the respondent were distinguished as having no such ambiguity.

The pleading alleged discrimination only over non-provision of a medical insurance facility. The 1st claimant confirmed in cross-examination that the facility was not in their contracts and that there was no evidence other staff enjoyed it. The burden under section 107 of the Evidence Act was not discharged. Section 34 of the Employment Act requires only provision of medical attention during illness, so the claim was baseless and dismissed. Attempts to introduce the service bond issue via submissions were rejected as submissions are not pleadings.

Under sections 43 and 45 of the Employment Act the employer must prove valid and fair reasons for termination. DW1 confirmed on oath there was no record of performance evaluation or of discipline, and no evaluation report was produced. Poor performance can only be objectively proved by an evaluation report, following Jane Samba Mukala v Ol Tukai Lodge. The termination letters cited unsatisfactory performance which the respondent could not substantiate.

Section 41 requires the employer, before terminating on grounds of misconduct, poor performance or incapacity, to explain the reasons to the employee and allow presence of a fellow employee or union representative. DW1 confirmed there was no disciplinary hearing before the termination letters issued. Following Jane Samba Mukala and Avril Elizabeth Home, the process was procedurally flawed. Under section 45(5) the court found neither valid reasons nor procedural compliance, hence the termination was unlawful and unfair.

Applying section 49(4) factors as articulated by the Court of Appeal in Youth Agenda v Rita Kijala Shako, the court considered the 14 months of service, the remaining period of the two-year contract, expectation of permanent employment after the service bond, and the fact that one month's notice pay had already been paid. The Youth Agenda benchmark of 5 months (3 months notice plus 2 months salary) was reduced to 4 months gross salary. Damages for discrimination were refused for want of proof.