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ELRCPartially AllowedNot stated in the excerpt· [2024] KEELRC 771 (KLR)

Munyao v Africa Medical Research Foundation (AMREF Health Africa) (Cause 197 of 2020) [2024] KEELRC 771 (KLR)

Employment and Labour Relations Court
20 March 2024
7,903 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that COVID-19 travel restrictions did not justify ending this employee's contract, making the termination unfair and worth six months' salary.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 2008 and serving as Regional Finance and Special Projects Manager under renewable fixed-term contracts, was terminated on 22nd April 2020 on the ground that his contract had been frustrated by the COVID-19 pandemic and associated travel restrictions. He claimed unfair and unlawful termination, sought reinstatement or 12 months' compensation, a declaration of unlawful redundancy, severance, terminal dues of USD 8,229.85, and general damages. The Respondent defended the termination on frustration grounds and counterclaimed for USD 177,104 alleging the Claimant drew salary for 16 months without performing work on the MS Navision system. The court found that the contract was not frustrated: travel restrictions merely altered the manner of performance, the Claimant's duties were broad and largely performable remotely, and the Respondent had adopted a Remote Working Policy. Any financial distress would have called for a redundancy under Section 40 of the Employment Act and Clause 21.4.1 of the Employee Manual. The reasons for termination were therefore not fair and valid under Section 45(2) of the Employment Act, rendering the termination unfair. The Counterclaim was dismissed as implausible, given the Claimant's positive 2019 performance appraisal. Reinstatement was refused as outside the three-year window in Section 12(3)(vii) of the ELRC Act; the terminal dues claim failed for lack of particulars; and severance was declined since compensatory damages were awarded. The court declared the termination unfair, awarded six months' salary (USD 66,414) with interest, and costs of the suit.

Key legal issues

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01

Whether the Claimant's contract of employment was frustrated by the COVID-19 pandemic and containment measures

Holding

The contract was not frustrated; travel restrictions and reduced funding altered the manner of performance but did not render it completely impossible or radically different

Reasoning

The court examined the job description and found the Claimant's responsibilities were broad and went beyond travel-based duties. He spent 17 weeks out of 52 in travel in 2019, meaning the remaining 35 weeks involved non-travel roles. The Respondent had adopted a Remote Working Policy, showing an alternative mode of performance existed. Financial distress would have called for a redundancy under Section 40 of the Employment Act and Clause 21.4.1 of the Employee Manual, which the Respondent avoided by electing the easier route of citing frustration.

p. 13
02

Whether the termination was fair and valid

Holding

The reasons advanced were not fair and valid within the meaning of Section 45(2)(a) and (b) of the Employment Act; the termination was unfair

Reasoning

Having found no frustration, the foundational reason for the termination collapsed. The court held that the Respondent's stated reasons did not meet the statutory standard of valid and fair reasons under Section 45(2) of the Employment Act, rendering the termination unfair.

p. 13
03

Whether the Respondent's Counterclaim for USD 177,104 was justified

Holding

The Counterclaim was dismissed in its entirety; the court found it implausible that the Claimant did no work at all

Reasoning

The Claimant exhibited a positive Contract Renewal Evaluation by his supervisor dated 6th August 2019 stating his performance met expectations, and an email from Mr. Misrak seeking his assistance. The court found it highly improbable that a supervisor would rate him positively if he was not performing, and implausible that he did no work at all to warrant a refund of salary.

p. 14
04

Whether the Claimant was entitled to reinstatement

Holding

Reinstatement was refused as the statutory three-year window under Section 12(3)(vii) of the ELRC Act had lapsed

Reasoning

The Claimant was terminated on 22nd April 2020 and the judgment was delivered on 20th March 2024, nearly four years later. An order of reinstatement would be contrary to Section 12(3)(vii) of the Employment and Labour Relations Court Act, which limits reinstatement to within three years of dismissal.

p. 14

Legal principles established

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  • Where a contract of employment is frustrated, it is terminated by operation of law and there is no dismissal; the contract ends automatically and without the fault of either party
  • Frustration requires that performance be rendered completely impossible or radically different from what the parties originally intended; a mere alteration in the manner of performance is insufficient
  • A claim for special damages must be specifically pleaded and strictly proved with as much particularity as the circumstances permit
  • An employer facing financial distress or reduced workforce needs should invoke the redundancy provisions under Section 40 of the Employment Act rather than conveniently citing frustration

Court orders

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  1. 1.A declaration that the Claimant's termination from employment by the Respondent, was unfair
  2. 2.The Claimant is awarded compensatory damages in the sum of 66,414 USD being equivalent to six (6) months of his gross salary
  3. 3.Interest on the amount in (b) at court rates from the date of Judgment until payment in full
  4. 4.The Claimant shall also have the costs of the suit
  5. 5.The Counterclaim is dismissed in its entirety with no orders as to costs
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12 (3) (vii); Employment Act 2007

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, "Munyao v Africa Medical Research Foundation (AMREF Health Africa) (Cause 197 of 2020) [2024] KEELRC 771 (KLR)", Case Analysis (2024). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/771/eng@2024-03-20

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