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ELRCPartially AllowedNot stated in the judgment text provided· [2024] KEELRC 876 (KLR)

Ng'ang'a v Kenya National Examinations Council & another (Petition E197 of 2021) [2024] KEELRC 876 (KLR)

Employment and Labour Relations Court of Kenya
5 April 2024
5,492 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a termination only counts when the employee actually receives the letter, awarding over Kshs 7 million for unfair dismissal.

What this practically means

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Executive summary

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The Petitioner, formerly Deputy Chief Executive Officer of the 2nd Respondent, was offered employment as Director, Corporate Services by the 1st Respondent effective 19th September 2017. The 2nd Respondent informed the 1st Respondent of unspecified 'unresolved issues' and declined to complete a confidential report. The 1st Respondent authored a termination letter on 30th November 2017, which the Petitioner claimed she only received on 6th January 2019, during which period she attended work without duties or salary. The court distilled three issues: time-bar, constitutional violation, and reliefs. On limitation, the court found the 1st Respondent failed to prove delivery of the termination letter - the delivery note's date was illegible or non-existent, and forgery claims against the Petitioner's receiving-stamped letters were unsupported. Following Alice Njambi Mutura, the court held that termination takes effect only upon receipt, so the cause of action arose on 6th January 2019 and the Petition filed on 1st December 2021 was not time-barred. On the merits, the court found the Petitioner was terminated without notice of allegations, without a hearing, and without notification of appeal rights, violating Articles 41, 47 and 236 of the Constitution and the Fair Administrative Actions Act. Withholding salary and duties without valid reason also violated fair labour practices. The court faulted the 2nd Respondent for supplying incomplete information that precipitated the termination. Judgment was entered against the 1st Respondent: declarations of violation, withheld salary of Kshs 6,318,444.00, damages of Kshs 750,000.00 (total Kshs 7,068,444.00), with costs borne equally by both Respondents. Reinstatement was not granted.

Key legal issues

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01

Whether the suit is time-barred under Section 90 of the Employment Act

Holding

The suit is not time-barred; the cause of action arose on 6th January 2019 when the Petitioner received the termination letter, and the Petition filed on 1st December 2021 was within three years

Reasoning

The 1st Respondent alleged the termination letter was delivered on 1st November 2017, exhibiting a delivery note whose date was illegible (possibly 1st, 3rd or 31st November 2017 - the latter a non-existent date). The court found the 1st Respondent failed to prove delivery. The Petitioner's contemporaneous letters seeking duties and salary bore receiving stamps of the 1st Respondent, whose forgery claim was unsupported by evidence. Following Alice Njambi Mutura, termination takes effect upon receipt of the letter.

p. 8
02

Whether the Petitioner's rights under Articles 41, 47 and 236 of the Constitution were violated

Holding

Yes - the 1st Respondent violated her rights to fair administrative action, fair labour practices and due process protection for public officers

Reasoning

The Petitioner, a public officer, was terminated without prior notice of allegations, without an opportunity to be heard, and without notification of any right of review or appeal, contrary to Article 47, Section 4(3) of the Fair Administrative Actions Act and Section 41 of the Employment Act. The 1st Respondent also withheld her salary and failed to allocate duties without valid reason, violating Article 41. The 2nd Respondent contributed to the breakdown by supplying incomplete information about 'unresolved issues'.

p. 9
03

Whether the Petitioner is entitled to the reliefs sought

Holding

Partially - declarations, withheld salary from December 2017 to January 2019, and Kshs 750,000 damages were awarded; reinstatement was not granted

Reasoning

The court granted declarations of violation, assessed damages at Kshs 750,000 by reference to comparable authorities (Atanda v JSC and Mbage v Hillcrest Investment Limited), and ordered payment of salary withheld from December 2017 up to 6th January 2019 when the Petitioner was notified of termination. The Petitioner was found to have been an employee until receipt of the termination letter.

p. 10

Legal principles established

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  • An employee's termination does not take effect until the letter of termination is in the hands of the employee; limitation under Section 90 of the Employment Act runs from the date of receipt, not the date the letter was authored
  • A party alleging forgery of documents bears the burden of proving non-authenticity

Court orders

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  1. 1.A declaration is hereby issued that the 1st Respondent violated the Petitioner's rights enshrined under Articles 41, 47 and 236 of the Constitution
  2. 2.The Petitioner is entitled to salary withheld from December 2017 up to January 2019 being the sum of Kshs 6,318,444.00
  3. 3.The Petitioner is awarded the sum of Kshs 750,000.00 for violation of her constitutional rights
  4. 4.The total award is Kshs 7,068,444.00
  5. 5.The Petitioner shall have also the costs of this Petition, to be borne equally by the 1st and 2nd Respondents
Jurisdiction invoked
Articles 22(1), 41, 47, 232 and 236 of the Constitution of Kenya 2010; Employment Act Section 90; Fair Administrative Actions Act

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, "Ng'ang'a v Kenya National Examinations Council & another (Petition E197 of 2021) [2024] KEELRC 876 (KLR)", Case Analysis (2024). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/876/eng@2024-04-05

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