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ELRCPartially AllowedCause No 555 of 2018· [2023] KEELRC 1806 (KLR)

Ochieng v Jambojet Limited (Cause 555 of 2018) [2023] KEELRC 1806 (KLR)

Employment and Labour Relations Court
27 July 2023
LNLinnet Ndolo
3,078 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that once you accept a job offer letter, you have a real employment contract that an employer cannot simply cancel.

What this practically means

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Executive summary

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The Claimant, a Flight Maintenance Engineer, accepted Jambojet Limited's conditional letter of appointment dated June 22, 2017 for the position of A&P Engineer at a monthly salary of Kshs. 423,000 and resigned from his then employer, ALS Limited, the following day. He reported for deployment on July 19, 2017 but was never assigned duties. The Respondent later asserted he was not deployed for failure to complete its security clearance process and produced a letter of the same date purporting to rescind the appointment, though there was no proof of service on the Claimant. The court framed two issues: the effect of the rescission and entitlement to remedies. Relying on South African authority and its own decision in Tom Omondi Ngoko v Bank of Africa, the court held that a duly signed and executed employment contract creates an enforceable employment relationship whether or not the employee is deployed. The Respondent, by its own witnesses' admission, had issued the appointment before completing background checks, contrary to best practice, and the security clearance objection - traced to the Claimant's earlier litigation with Kenya Airways - was unsubstantiated and never placed before the Claimant for response. The rescission was therefore held to breach fair procedure and to amount to unfair termination under Section 45 of the Employment Act. The court awarded three months' salary in compensation and two months' salary in lieu of notice, totalling Kshs. 2,115,000, with interest at court rates from the date of judgment and costs to the Claimant. The remaining heads of claim - damages for breach of contract, salary from appointment date, and unpaid leave - were dismissed as unproved.

Key legal issues

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01

Whether an employment relationship existed before deployment

Holding

Yes - acceptance of the letter of offer created an enforceable employment relationship despite non-deployment

Reasoning

Relying on South African authority and this Court's decision in Tom Omondi Ngoko v Bank of Africa, the court held that a duly signed and executed contract of employment creates an employment relationship capable of enforcement, whether or not the employee is actually deployed. The Claimant accepted the offer and resigned from his previous employment in reliance on it.

p. 7
02

Whether the rescission amounted to unfair termination

Holding

Yes - the rescission breached fair procedure and amounted to unfair termination under Section 45 of the Employment Act

Reasoning

The Respondent issued the letter of appointment before completing background checks, contrary to its own admitted best practice, and based the rescission on an unsubstantiated allegation of failure to complete security clearance without placing its concerns before the Claimant for response. The executed contract could not be terminated whimsically.

p. 8
03

Burden of proof on the security clearance allegation

Holding

The allegation was unsubstantiated; no evidence the Claimant failed to disclose material facts

Reasoning

The court found no evidence that the Claimant withheld or failed to disclose material facts about his prior employment with Kenya Airways or its termination. The stated reason of failure to complete security clearance could not be objectively verified, so the Respondent failed to justify the rescission.

p. 7

Legal principles established

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  • A valid employment contract takes effect once the employee accepts the letter of offer, and once executed it creates an enforceable employment relationship whether or not the employee is deployed.
  • An executed employment contract cannot be terminated whimsically by one party; rescission without fair procedure amounts to unfair termination under Section 45 of the Employment Act.

Court orders

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  1. 1.Award of three (3) months' salary in compensation for unfair termination (Kshs. 1,269,000)
  2. 2.Award of two (2) months' salary in lieu of notice (Kshs. 846,000)
  3. 3.Total judgment of Kshs. 2,115,000 with interest at court rates from the date of judgment until payment in full
  4. 4.Claimant awarded costs of the case

Authorities

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Legislation

  • Employment ActSection 45

Cases cited (3)

  • Greyvestein v Iliso Consulting Engineers
    2004 BALR 330
  • Wyeth SA (Pty) Ltd v Manqele & others
    (2005) 6 BLLR 523
  • Tom Omondi Ngoko v Bank of Africa
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Employment and Labour Relations Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ochieng v Jambojet Limited (Cause 555 of 2018) [2023] KEELRC 1806 (KLR)", Case Analysis (2023). Cause No 555 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1806/eng@2023-07-27

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