Odhiambo v Black Tulip Flowers Limited (Employment and Labour Relations Cause E019 of 2020) [2024] KEELRC 2052 (KLR)
The bottom line
#A Kenyan court ruled an employer cannot dismiss you for work done at another organisation if that work was never written into your employment contract.
What this practically means
#Executive summary
#Key legal issues
#Terms of engagement and scope of the claimant's duties
The employment relationship was governed solely by the contract executed on 29th January 2022, which made no mention of the CBG or any duties in it.
The court found the 29th January 2022 contract established the employment relationship, running one year from 26th January 2022. The contract contained an express variation clause. No evidence showed the terms were varied to allocate duties in the CBG, a separate juridical entity. Any additional duties would have required express contractual amendment covering roles, reporting lines, remuneration and benefits.
Lawfulness of the summary dismissal
The dismissal lacked substantive justification as the alleged misconduct was outside the purview of the contract; the respondent failed to prove the reason for dismissal contrary to Sections 43, 44, 45 and 47(5) of the Employment Act.
The claimant was not disciplined for breach of her contract but for alleged failures in the affairs of an independent entity, the CBG, which was not party to the proceedings. Although procedural steps were followed, the substantive grounds failed. Even assuming jurisdiction, the process was hurried, predetermined and draconian given that the actual culprits were charged and the claimant exonerated by DCI investigations.
Entitlement to reliefs
Declaration of unfair dismissal granted; compensation limited to salary for the four remaining months of the contract plus one month's pay in lieu of notice; reinstatement refused.
The court held compensation must reflect actual loss, not unjust enrichment. With four months remaining on the one-year contract, the loss was Kshs 779,696/=. Reinstatement was untenable because the contract's natural life had expired on 25th January 2023 and parties showed no intention to re-engage. Notice pay was payable under clause 5 of the contract.
Legal principles established
#- An employer cannot discipline or dismiss an employee for alleged misconduct committed in a separate and distinct legal entity where the alleged duties were not in the contract of employment.
- Additional duties in another entity must be incorporated in the contract of employment, with express terms, to found a disciplinary action.
- Compensation for unfair termination should not amount to unjust enrichment and is limited to what the employee truly and justly lost.
Court orders
#- 1.A declaration be and is hereby issued that the dismissal of the claimant by the respondent was unfair, wrongful, and unlawful.
- 2.Award of gross salary due and payable for the remainder of the term of the contract of Kshs 779,696/=, subject to statutory deductions.
- 3.Award of one month's salary in lieu of notice of Kshs 194,924/=, subject to statutory deductions.
- 4.The claimant is awarded the costs of the cause.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the Constitution (Article 27, 47 & 50 relied on in the claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo v Black Tulip Flowers Limited (Employment and Labour Relations Cause E019 of 2020) [2024] KEELRC 2052 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2052/eng@2024-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.