Mwangemi v County Government of Taita Taveta & 2 others (Cause 32 of 2020) [2023] KEELRC 1925 (KLR)
The bottom line
#A Kenyan court ruled that even contract jobs on notice cannot be terminated without valid reasons and a fair hearing, awarding a doctor Ksh. 2.6 million.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was fair notwithstanding the contractual notice clause
Termination was substantively and procedurally unfair; payment in lieu of notice under clause 6(a) could not substitute for valid reasons and due process
The court held that employment relations in Kenya are now governed by the Employment Act and an employer cannot rely solely on a notice clause. Sections 35, 43 and 45 must be read together, requiring valid reasons. The intention to pay in lieu of notice is insufficient; absent valid reasons and a hearing, termination is unfair under Section 45.
Whether cabinet meetings constituted a fair hearing under Section 41
They did not; the claimant was not given the hearing prescribed by Section 41(1) with a representative and consideration of representations
The respondents alleged conflict of interest, irregularities and underperformance addressed at three cabinet meetings. The court held that cabinet proceedings are not equivalent to the rights secured under Section 41(1), which requires notice and a hearing before termination on grounds of misconduct, following Postal Corporation of Kenya v Andrew K. Tanui and Oyombe v Eco Bank.
Whether the alleged underperformance justified termination
No; no proof of underperformance or of support measures was adduced, and no evidence was called by the respondents
Following National Bank of Kenya v Samuel Nguru Mutonya, an employer must demonstrate that after appraisal finding poor performance, the employee was given training and timelines to improve. The respondents adduced no evidence to prove the allegations of conflict of interest and underperformance, having failed to call any witness.
Whether the claimant was entitled to payment for the unspent 3 years of contract
Not entitled; the claimant should mitigate by securing new employment
The court recognised the contract envisaged termination though with due process, which was lacking. However, since the claimant is a medical doctor with skills needed elsewhere, he cannot claim wages for the remaining term but must mitigate his loss by seeking alternative employment.
Whether the claimant was entitled to pay for work during public holidays
Not justified; the claimant was not a minimum wage general worker and had contractual benefits
The court noted the claimant was not a general worker on minimum wage and under clause 4(a) of the contract enjoyed benefits including daily subsistence allowance, monthly airtime, in-service medical cover, making a claim for public holiday pay unjustified.
Legal principles established
#- An employer cannot rely solely on a contractual notice clause to terminate employment; a valid reason must be given even where notice is due
- The right to issue notice under Section 35 of the Employment Act must be read together with Sections 43 and 45, which mandatorily require reasons for termination
- Cabinet meetings do not satisfy the procedural requirements of Section 41 of the Employment Act for termination on grounds of misconduct or poor performance
- To dismiss an employee for underperformance, the employer must prove the underperformance and the support measures put in place
Court orders
#- 1.A declaration that employment terminated unfairly
- 2.Compensation of Ksh. 2,598,750 (10 months gross wage)
- 3.The claimant shall attend and clear with the respondents for payment of his terminal dues including untaken leave days
- 4.A certificate of service to be issued in terms of Section 51 of the Employment Act, 2007
- 5.The claimant is awarded costs
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution (employment and labour relations court); 1st respondent established under Article 176(1) of the Constitution; 3rd respondent under Section 57 of the County Government Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangemi v County Government of Taita Taveta & 2 others (Cause 32 of 2020) [2023] KEELRC 1925 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1925/eng@2023-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.