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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 1413 (KLR)

Ogari v Bandari Football Club (Cause E081 of 2023) [2024] KEELRC 1413 (KLR)

Employment and Labour Relations Court
20 March 2024
MMM. MBARŨ
1,283 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a football club's contract clause allowing termination by notice could not replace the Employment Act's requirement for valid reasons and a fair hearing.

What this practically means

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Executive summary

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The claimant was employed by the respondent football club under a 3-year fixed-term contract dated November 2021, ending 1st November 2024, as team manager at a gross monthly salary of Ksh. 89,824. On 6th July 2023, while returning from leave, he received notice terminating his employment, with no reasons given and no hearing. He sued for notice pay, payment for the unexpired term of the contract (Ksh. 1,744,658.88), compensation for mental anguish and reputational damage, and costs. The respondent admitted the contract but contended that clause 7 allowed termination by notice or payment of two months' salary in lieu, which it honoured, and that termination was therefore lawful. The chairman, Twaha Mbarak, testified to that effect. The court held that an employment contract is not governed solely by the parties' agreement but must meet the minimum standards of the Employment Act, 2007, which applies to Kenyan employment even absent express reference. While Section 35 permits termination by notice or payment in lieu, the Act read as a whole requires valid reasons (Section 43) and procedural fairness (Sections 41 and 45). The respondent's reliance on the contractual notice clause was insufficient; the failure to adhere to Sections 41, 43 and 45 rendered the termination unfair. On remedy, the court applied Section 49, noting the 15 months remaining on the contract, the two months' notice pay already received, and the claimant's duty to mitigate as a seasoned team leader. It awarded ten months' gross salary as compensation (Ksh. 898,200) and declined exemplary damages as redressed within that award. Judgment was entered for the claimant with a declaration of unfair termination, compensation of Ksh. 898,200, and costs of the suit.

Key legal issues

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01

Whether contractual termination by notice/payment in lieu satisfies the Employment Act

Holding

No; the statutory requirements of Sections 41, 43 and 45 are mandatory and the respondent's failure to give valid reasons and a hearing rendered the termination unfair

Reasoning

The court held that an employment contract is regulated not only between the parties but must also meet the threshold of the Employment Act, 2007. Under Section 35 an employer may terminate by notice or payment in lieu, but the Act must be read as a whole: Sections 40, 41, 43, 44 and 45 require valid reasons and a hearing. The respondent's only defence was the contractual notice clause, which the court held insufficient; the failure to adhere to Sections 41, 43 and 45 resulted in unfair termination.

p. 2
02

Remedy for unfair termination of a fixed-term contract with an unexpired term

Holding

Compensation of ten months' gross salary (Ksh. 898,200) awarded under Section 49, taking into account the 15 remaining months, notice pay already received, and the duty to mitigate

Reasoning

Section 49 permits the court to award wages the employee would have earned for the unexpired term. The claimant had 15 months remaining, reduced by two months' notice pay to 13. However, as a seasoned team leader he was required to mitigate his loss and make his skills available in the market. Balancing these factors with the distress and reputational losses, the court found ten months' gross salary justified.

p. 3

Legal principles established

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  • Even where parties agree on contractual modalities for termination, the statutory minimum protections of the Employment Act must be observed; termination requires valid and genuine reasons and a hearing.
  • Payment in lieu of notice alone, per the contract, is insufficient; the employer must give valid reasons under Section 43 and follow Sections 41 and 45 of the Employment Act.

Court orders

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  1. 1.Judgment entered for the claimant against the respondent with a declaration that the employment was terminated unfairly
  2. 2.Compensation awarded at Ksh. 898,200 (ten months' gross salary)
  3. 3.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Act, 2007Section 35
  • Employment Act, 2007Sections 40, 41, 43, 44 and 45
  • Employment Act, 2007Section 49 and 49(1)(b)

Cases cited (4)

  • Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya)
    (Civil Appeal 240 of 2018) [2021] eKLR
  • Kenfreight (E.A) Limited v Benson K. Nguti
    [2019] eKLR
  • Joseph Mwaniki Nganga v United Millers Limited
    [2022] eKLR
  • Peri Formwork Scaffolding v White Lotus Projects Limited
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (contract of employment and unfair termination claim)

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, "Ogari v Bandari Football Club (Cause E081 of 2023) [2024] KEELRC 1413 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1413/eng@2024-03-20

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