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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 3357 (KLR)

Nyambu v Kenya Kazi Services Ltd (Employment and Labour Relations Cause 389 of 2018) [2023] KEELRC 3357 (KLR)

Employment and Labour Relations Court
18 December 2023
3,420 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that accepting conditional unpaid study leave can end your job unless a vacancy later exists for your return.

What this practically means

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Executive summary

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The Claimant, an employee of the Respondent since July 2007, applied for one-year unpaid study leave in September 2016 to pursue an MSc in Cyber Security and Management at the University of Warwick. Her line managers recommended the request, and she departed for studies before formal approval. The Respondent's letter of 6th October 2016 approved the leave conditionally: no salary, leave or superannuation benefits would accrue, and re-absorption into employment would depend on availability of a suitable vacancy upon successful completion. The Claimant endorsed the letter on 7th October 2016. On completing her studies she requested reinstatement; the Respondent declined, citing absence of a suitable vacancy, as her former position had been filled by another employee. The Claimant sued, alleging a legitimate expectation of reinstatement, discriminatory treatment vis-à-vis other employees previously re-absorbed, and that her loss of position constituted a redundancy requiring lawful redundancy procedures. The court framed three issues: whether the contract was unlawfully terminated or voluntarily discharged; whether the loss of position was redundancy; and entitlement to reliefs. Holding that parties may mutually and temporarily discharge an employment contract, the court found the Claimant's acceptance of the conditional study leave amounted to such a discharge, revivable only upon a suitable vacancy. No unconditional promise or proven past practice founded a legitimate expectation, and the position's loss was not a redundancy since it was filled, not rendered superfluous. The suit was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the employment relationship was terminated unlawfully or voluntarily discharged.

Holding

The Claimant voluntarily accepted conditions of study leave which temporarily discharged the contract, conditional on re-engagement only upon availability of a suitable vacancy.

Reasoning

The court construed the Respondent's letter of 6th October 2016, which granted unpaid study leave subject to conditions, including re-absorption only if a suitable vacancy existed. The Claimant endorsed the letter on 7th October 2016, accepting the conditions. Citing Globe Motors and Nancy W. Ngatia, the court held the parties were free to temporarily discharge their contract, and the Claimant's acceptance amounted to a voluntary temporary discharge rather than unlawful termination.

p. 7
02

Whether the Claimant had a legitimate expectation of reinstatement.

Holding

No legitimate expectation arose; the promise to re-engage was conditional and no evidence of past practice was adduced.

Reasoning

The court held the promise to re-absorb the Claimant was expressly conditional on a suitable vacancy. Allegations that other employees had previously been re-absorbed were unsupported by evidence. Applying Teresa Carlo Omondi, legitimate expectation requires demonstration of past practice or express promise, neither of which existed here.

p. 6
03

Whether the loss of the Claimant's position amounted to redundancy.

Holding

No; the position was filled by another employee after the Claimant left for studies, not rendered superfluous by operational requirements.

Reasoning

The court found there was evidence the Claimant's position was taken over by another employee when she went on study leave. The position did not disappear due to operational requirements; the Claimant gave it up voluntarily to pursue further studies. Therefore the redundancy provisions of employment law were not engaged.

p. 7

Legal principles established

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  • A conditional study leave can result in the discharge of a contract of employment, depending on the construction of the instrument granting the leave.
  • Legitimate expectation confers a benefit only where the invoking party demonstrates that the other party aroused the expectation through past practice or express promise.
  • Parties to an employment contract may mutually discharge it temporarily or conditionally, and are bound by agreed terms absent coercion, undue influence, mistake or misrepresentation.

Court orders

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  1. 1.The suit is dismissed with costs to the Respondent.

Authorities

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Cases cited (3)

  • Globe Motors Inc & Others v TRW Lucas Variety Electric Steering Ltd & Others
    [2016] EWCA Civ 396
  • Nancy W. Ngatia v Kenya Ports Authority
    [2016] eKLR
  • Teresa Carlo Omondi Vs Transparency International Kenya
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and ELRC Procedure Rules (not expressly cited in the excerpt)

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, "Nyambu v Kenya Kazi Services Ltd (Employment and Labour Relations Cause 389 of 2018) [2023] KEELRC 3357 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3357/eng@2023-12-18

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