Ole Kimanjoi v East African Portland Cement PLC (Cause 2216 of 2017) [2023] KEELRC 1749 (KLR)
The bottom line
#A Kenyan court ruled that ending a fixed-term employee's duties without reasons was unfair termination, entitling him to three months' notice pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's employment was unfairly terminated
Yes - the letter of May 11, 2017 was a firm decision terminating the contract before expiry, gave no reasons, and provided no engagement with the claimant, amounting to unfair termination
Although the claim framed only non-payment of notice pay, the court found the May 11, 2017 letter directing the claimant to cease duty the next day bore the hallmark of a termination letter. It gave no reasons, the respondent did not engage the claimant before or after the decision, and did not respond to the claimant's counsel's letter. The claimant proved on a balance of probabilities that the contract, which could only be terminated per its terms and the Employment Act, 2007, was unfairly terminated.
Whether the respondent promised to pay 3 months salary in lieu of notice
Yes - the respondent's letter promised to honour all contractual obligations, which include 3 months' notice or pay in lieu under the appointment letter, and no notice was in fact given
The court read the letter's undertaking that all contractual obligations under the claimant's terms and conditions of service would be fully honoured as encompassing the contractual entitlement to three months' notice or salary in lieu. This was consistent with the finding that the letter was a termination without notice. The clause itself was unambiguous, so the contra proferentem rule urged by counsel was unnecessary; however, the promise bound the respondent.
Whether the claimant was entitled to 12 months' compensation
No - having been paid salary for the entire unexpired term, the claimant suffered no loss warranting compensation
The court found as a fact that the claimant was paid all dues including salary and gratuity for the unserved remaining period of the contract by June 2017, before the contract's expiry. Awarding compensation on top of full payment would amount to unjust enrichment and was not justified. Only the notice pay, founded on the unfair termination and the express promise, was merited.
Legal principles established
#- An employee claiming unfair termination bears the burden of proving his case even where the employer defends the claim; allegations on oath or in pleadings without evidence are insufficient
- A fixed-term contract can only be terminated in accordance with its terms and the Employment Act, 2007; a letter directing the employee to cease reporting without reasons is a termination
Court orders
#- 1.Judgment entered in favour of the claimant against the respondent for three (3) month's salary in lieu of notice
- 2.Costs of this suit to the claimant
- 3.Interest at court rates till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007; claim for salary in lieu of notice under a fixed-term contract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ole Kimanjoi v East African Portland Cement PLC (Cause 2216 of 2017) [2023] KEELRC 1749 (KLR)", Case Analysis (2023). Cause No 2216 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1749/eng@2023-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.