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ELRCPartially AllowedNot stated in the judgment as provided· [2023] KEELRC 2604 (KLR)

Kosgei v Nandi County Public Service Board (Employment and Labour Relations Cause 175 of 2018) [2023] KEELRC 2604 (KLR)

Employment and Labour Relations Court
19 October 2023
2,993 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, employed on 1st July 2014 as Assistant Political Advisor to the Governor of Nandi County on a four-year fixed term contract, was issued with a termination letter on 25th September 2017 giving one month's notice, effective 31st October 2017, following the election of a new governor. The letter explained that he had to vacate office as personal staff of the previous governor to make way for the new governor's appointees. The Claimant sued for declarations of unlawful discrimination and unfair termination, unpaid leave allowances, compensation for the unexpired term, general damages and costs. The Respondent argued he could have had no legitimate expectation of continuing in office after a change of governor. The court framed two issues: whether the contract was unfairly terminated and whether the reliefs were payable. It found the termination unfair under section 45 of the Employment Act and a violation of section 41 procedure, and discriminatory on the ground of presumed political affiliation contrary to section 5 of the Employment Act and Article 27 of the Constitution, since the Claimant was never asked whether he could work with the new governor. Leave of 70 days was awarded at Kshs. 335,412. Compensation for the unexpired term was declined as unsupported by law and not provided for in the contract. Instead, 12 months' salary of Kshs. 1,724,976 was awarded for unfair termination and discrimination, with costs to the Claimant and interest at court rates from the date of judgment.

Key legal issues

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01

Whether the Claimant's fixed term contract was unfairly terminated

Holding

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.

Reasoning

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.

p. 9
02

Whether the Claimant was discriminated against on political grounds

Holding

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.

Reasoning

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.

p. 5
03

Whether the Claimant was entitled to leave allowances

Holding

Yes. Leave of 70 days for the 3 years and 4 months worked, at 1.75 days per month, awarded at Kshs. 335,412.

Reasoning

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.

p. 9
04

Whether compensation for the unexpired term of the contract was payable

Holding

No. The prayer was declined as unsupported by law and not provided for in the contract.

Reasoning

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.

p. 9
05

What compensation is payable for the unfair and discriminatory termination

Holding

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.

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.Declaration that the termination of the Claimant's contract was unfair and discriminatory (finding made)
  2. 2.Award of Kshs. 335,412 being 70 days' leave entitlement
  3. 3.Award of Kshs. 1,724,976 being 12 months' salary as compensation for unfair termination and general damages for discrimination
  4. 4.Respondent to pay the Claimant's costs of the suit
  5. 5.Interest at court rates from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 27
  • Employment Act, 2007Sections 5, 35, 41, 43, 44, 45, 46, 47, 49(4)

Cases cited (1)

  • Dan Caxton Chogo Undusu v Jubilee Insurance Company of Kenya Limited
    [2020] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.