Kosgei v Nandi County Public Service Board (Employment and Labour Relations Cause 175 of 2018) [2023] KEELRC 2604 (KLR)
The bottom line
#A Kenyan court ruled that firing a county worker to make way for a new governor's staff was unfair discrimination, awarding him over Kshs. 2 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's fixed term contract was unfairly terminated
The termination was unfair under section 45 of the Employment Act; the reason given (being staff of the previous governor) was not valid or fair, and the procedure under section 41 was not complied with.
The termination letter stated the Claimant had to vacate office to allow the new governor to recruit his own staff. The court held this was removal on grounds of presumed political affiliation without giving the Claimant an opportunity to be heard, contrary to sections 41 and 45 of the Employment Act, and discriminatory under section 5 of the Act and Article 27 of the Constitution.
Whether the Claimant was discriminated against on political grounds
Yes. The Claimant was removed in favour of a person to be appointed by the new governor, which amounts to discrimination on the ground of political or other opinion.
Section 5 of the Employment Act prohibits discrimination on grounds including political opinion, and Article 27(5) of the Constitution prohibits direct or indirect discrimination. The termination letter made the Claimant's presumed political affiliation with the former governor the basis of removal, and he was never asked whether he could work with the new governor.
Whether the Claimant was entitled to leave allowances
Yes. Leave of 70 days for the 3 years and 4 months worked, at 1.75 days per month, awarded at Kshs. 335,412.
The Claimant testified he never took leave during his employment and the Respondent did not deny it. The court computed the entitlement at the statutory rate of 1.75 days per month over the period served and awarded the monetary value.
Whether compensation for the unexpired term of the contract was payable
No. The prayer was declined as unsupported by law and not provided for in the contract.
Kenyan law does not recognise damages for the unexpired portion of a fixed term contract in these circumstances where the contract itself made no provision for payment of the remainder, so the court declined that head of relief while awarding 12 months' compensation under section 49 instead.
What compensation is payable for the unfair and discriminatory termination
12 months' salary of Kshs. 1,724,976 awarded to cover both compensation for unfair termination and general damages for discrimination, taking into account section 49(4) factors.
Having found unfair termination and discrimination, the court exercised its discretion under section 49(4) of the Employment Act and, considering all relevant circumstances, awarded the equivalent of 12 months' gross salary as a consolidated award for the unfair termination and the discrimination.
Legal principles established
#- Terminating an employee to vacate the position for a new governor's appointee amounts to discrimination on the ground of presumed political affiliation, contrary to section 5 of the Employment Act and Article 27 of the Constitution
- A fixed term contract terminates upon effluxion of its term unless terminated for lawful cause before expiry
Court orders
#- 1.Declaration that the termination of the Claimant's contract was unfair and discriminatory (finding made)
- 2.Award of Kshs. 335,412 being 70 days' leave entitlement
- 3.Award of Kshs. 1,724,976 being 12 months' salary as compensation for unfair termination and general damages for discrimination
- 4.Respondent to pay the Claimant's costs of the suit
- 5.Interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution (implied by subject matter; not expressly quoted in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Engineering Workers Union v Sheer Logics Management Consultants Limited (Cause E085 of 2024) [2025] KEELRC 202 (KLR)[2025] KEELRC 202 (KLR)30 Jan 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kosgei v Nandi County Public Service Board (Employment and Labour Relations Cause 175 of 2018) [2023] KEELRC 2604 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2604/eng@2023-10-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.