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ELRCPartially AllowedEmployment and Labour Relations Court cause, Statement of Claim dated 12th February 2021· [2024] KEELRC 1397 (KLR)

Gitonga v Care International Kenya (Cause E119 of 2021) [2024] KEELRC 1397 (KLR)

Employment and Labour Relations Court of Kenya
12 June 2024
4,264 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an employee nearly Kshs 4.4 million after finding her employer dishonestly refused to renew her contract and unlawfully cut her pay.

What this practically means

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Executive summary

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The Claimant, employed as Finance and Administration Manager in the Respondent's Dadaab Refugee Assistance Program Office, sued claiming that the Respondent's refusal to renew her one-year fixed term contract expiring on 30th June 2020 was an unfair termination driven by improper motives, and that a 50% deduction of her May and June 2020 salaries during purported 'administrative leave' was unlawful. She sought 12 months' salary for unfair dismissal, notice pay, one year's salary for non-renewal, unpaid salaries and constitutional damages. The Respondent maintained the contract simply expired by effluxion of time, that it was not obliged to renew or give reasons, and that terminal dues were paid in full. The Claimant relied on representations at a staff meeting that renewal would depend on funding, performance and discipline, and argued the Respondent withheld her appraisal reports. The Court found the Respondent's conduct less than honest: it gave an assurance renewal would follow if funding, performance and discipline allowed, none of these were considered, others renewed while she was singled out, and her appraisals were never produced. It held administrative leave with a pay cut is unknown to the Employment Act, making the Respondent liable for the withheld wages. Judgment was entered for the Claimant for one month's notice pay (Kshs. 295,950.55), 12 months' compensation (Kshs. 3,551,406.60), withheld wages (Kshs. 591,900/-), costs, interest, and a certificate of service. No double compensation was allowed for non-renewal, and no separate constitutional damages were awarded.

Key legal issues

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01

Whether non-renewal of the fixed term contract amounted to unfair termination

Holding

Yes - the decision not to renew was actuated by improper motive and less than honest conduct, rendering it unfair termination

Reasoning

Although a fixed term contract ordinarily expires by effluxion of time, the Court found the Respondent gave an assurance that renewal would follow if funding, performance and discipline permitted; none of these were considered. The Claimant's appraisals were withheld, others renewed their contracts while she was singled out, and her supervisor was biased against her. The Court therefore held the Respondent's conduct was dishonest and awarded the maximum 12 months' compensation under section 49 of the Employment Act.

p. 7
02

Entitlement to salary for May and June 2020 under 'administrative leave'

Holding

The Claimant was entitled to the withheld 50% of her salary for May and June 2020

Reasoning

The Court observed that administrative leave is not recognised in the Employment Act; where known elsewhere it is on full pay. Since the pay cut was not the Claimant's doing and was not provided for in the HR Manual, the Respondent was liable for the deducted and withheld wages of Kshs. 591,900/-, with interest from the date of filing suit.

p. 6
03

Notice pay

Holding

One month's salary in lieu of notice awarded at Kshs. 295,950.55

Reasoning

The Respondent contended the Claimant served her notice period, but the Court included one month's salary in lieu of notice in the final judgment, treating the termination as unfair and the notice entitlement unmet. It formed part of the monetary awards carrying interest from the date of judgment.

p. 7

Legal principles established

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  • An employer whose conduct in terminating an employee is less than honest may be exposed to the maximum statutory compensation for unfair termination
  • 'Administrative leave' with a pay cut is unknown to the Employment Act and an employer imposing it bears liability for the withheld wages

Court orders

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  1. 1.One month's salary in lieu of notice – Kshs. 295,950.55
  2. 2.12 month's salary as compensation – Kshs. 3,551,406.60
  3. 3.Underpayment of wages (money deducted and withheld unlawfully) – Kshs. 591,900/-
  4. 4.Costs of the suit to the Claimant
  5. 5.Interest on the sums in (a) and (b) at court rates from the date of judgment till payment in full
  6. 6.Interest at court rates on the sum in (c) from the date of filing suit till payment in full
  7. 7.Certificate of service in terms of section 51 of the Employment Act

Authorities

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Legislation

  • Constitution of KenyaArticle 41(1)
  • Employment Act No. 11 of 2007sections 10(3)(c), 47(5), 49, 49(4), 51
  • Termination of Employment Convention No. 158 of 1982article 2(3)
  • Termination of Employment Recommendation No. 166 of 1982articles 3(1) and (2)

Cases cited (14)

  • Keen Kleeners Limited v Kenya Plantation and Agricultural Workers' Union
    (Civil Appeal 101 of 2019) [2021] KECA 352
  • West Kenya Sugar Co. Ltd v Patrick Mwakha Shihundu
    [2019] eKLR
  • Alice M'mboga Ogolla v Nyayo Tea Zones Development Authority
    [2017] eKLR
  • Abigael Jepkosgei Yator & another v China Hanan International Co. Ltd
    [2018] eKLR
  • Administrator, Transvaal v Traub
    [1989] 10 ILJ 823
  • Margaret A Ochieng v National Water Conservation & Pipeline Corporation
    [2014] eKLR
  • Angela Wokabi Muoki v Tribe Hotel Limited
    [2016] eKLR
  • Jonathan Spangler v Centre for African Family Studies (CAFS)
    [2017] eKLR
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
  • Transparency International Kenya v Teresa Carlo Omondi
    [2023] eKLR
  • Apex Steel Limited v Dominic Mutua Muendo
    [2020] eKLR
  • Johnstone Luvisia v Allpack Industries Limited
    [2019] eKLR
  • Gichuru v Package Insurance Brokers Ltd
    (Petition 36 of 2019) [2021] KESC 12 (KLR)
  • Anne Theuri v Kadet Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Article 41 of the Constitution (fair labour practices)

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, "Gitonga v Care International Kenya (Cause E119 of 2021) [2024] KEELRC 1397 (KLR)", Case Analysis (2024). Employment and Labour Relations Court cause, Statement of Claim dated 12th February 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1397/eng@2024-06-12

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