Gitonga v Care International Kenya (Cause E119 of 2021) [2024] KEELRC 1397 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether non-renewal of the fixed term contract amounted to unfair termination
Yes - the decision not to renew was actuated by improper motive and less than honest conduct, rendering it unfair termination
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.
Entitlement to salary for May and June 2020 under 'administrative leave'
The Claimant was entitled to the withheld 50% of her salary for May and June 2020
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.
Notice pay
One month's salary in lieu of notice awarded at Kshs. 295,950.55
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.
Legal principles established
#- 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
#- 1.One month's salary in lieu of notice – Kshs. 295,950.55
- 2.12 month's salary as compensation – Kshs. 3,551,406.60
- 3.Underpayment of wages (money deducted and withheld unlawfully) – Kshs. 591,900/-
- 4.Costs of the suit to the Claimant
- 5.Interest on the sums in (a) and (b) at court rates from the date of judgment till payment in full
- 6.Interest at court rates on the sum in (c) from the date of filing suit till payment in full
- 7.Certificate of service in terms of section 51 of the Employment Act
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Article 41 of the Constitution (fair labour practices)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.