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ELRCDismissedMemorandum of Claim dated 16th May, 2022· [2023] KEELRC 2411 (KLR)

Musau v Nairobi City County (Cause 318 of 2022) [2023] KEELRC 2411 (KLR)

Employment and Labour Relations Court
3 October 2023
DMD. K. Njagi Marete
3,017 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A court found a county advisor was never validly employed because his appointment was irregular, so his Kshs 6.5 million claim for unfair dismissal failed.

What this practically means

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Executive summary

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The Claimant, appointed by a letter dated 9th May, 2019 signed by the then Governor as Advisor - ICT, Nairobi City County, at a consolidated monthly salary of Kshs 165,089/=, claimed he was never paid, was denied an office and facilitation, and was constructively and summarily dismissed without pay, departing at the end of October 2019. He sought Kshs 6,487,998.00 comprising notice pay, five months' unpaid salary, service gratuity and 24 months' damages, plus a declaration, interest, a certificate of service and costs. The Respondent denied the claim, contending the recruitment was unprocedural and irregular, never sanctioned by the appropriate internal organs, and that the recruiting officer, Mr. Charles Kerich, had no mandate to offer employment. The court framed four issues, the first being whether a legitimate employment contract existed. Relying on the Claimant's admissions in cross-examination that the position was never advertised and no authority of the recruiting officer was shown, the court found the Claimant was not regularly employed. With that finding, all other issues fell away. The claim was dismissed with each party bearing their own costs. Judgment delivered on 3rd October, 2023 by D. K. Njagi Marete, Judge.

Key legal issues

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01

Whether a legitimate employment contract existed between the Claimant and the Respondent

Holding

No. The appointment was unprocedural and irregular; Mr. Charles Kerich had no mandate to offer employment on behalf of the Respondent, its Public Service Board or Human Resource Department, and the Claimant admitted no advertisement or authority was shown.

Reasoning

The court weighed the Claimant's admission during cross-examination that he was never shown an advertisement of the position nor any authority of the recruiting officer, and the Respondent's assertion that internal organs never sanctioned the recruitment. On that evidence the appointment letter signed by the Governor could not confer a regular contract of employment, disposing of the first issue and, by extension, the entire claim.

p. 7
02

Whether the Claimant's constructive dismissal claim could succeed

Holding

No; with no valid contract of employment, the remaining issues on termination and its fairness fell away.

Reasoning

The court held that a finding of unprocedural employment rendered the other issues unworthy of determination. The constructive dismissal doctrine cited by both sides (Coca Cola v Ligaga) presupposes an employment relationship; absent a legitimate contract, the Claimant could not establish repudiatory breach or entitlement to leave employment.

p. 7

Legal principles established

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  • Where the recruiting officer lacked the requisite legal authority, the purported employment is not regular, and a claim founded on such irregular employment fails in its entirety.

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party to bear their own costs of the cause

Authorities

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Legislation

  • Work Injury Benefits Actapplicable to work related injury

Cases cited (5)

  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
  • Alfred Githinji v Mumias Sugar Company Ltd
    Civil Appeal No 194 of 1991
  • Central Bank of Kenya v Julius Nkonge
    [2002] eKLR
  • CMC Aviation Limited v Mohammed Noor
    [2015] eKLR
Jurisdiction invoked
Employment and labour relations dispute before the Employment and Labour Relations Court

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, "Musau v Nairobi City County (Cause 318 of 2022) [2023] KEELRC 2411 (KLR)", Case Analysis (2023). Memorandum of Claim dated 16th May, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2411/eng@2023-10-03

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