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ELRCPartially Allowed· [2024] KEELRC 2771 (KLR)

Chemtai v Koitalel Samoei University College (Employment and Labour Relations Cause E015 of 2023) [2024] KEELRC 2771 (KLR)

Employment and Labour Relations Court
7 November 2024
8,974 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that an employer cannot escape liability by blaming its own recruitment mistakes, awarding four months' salary for unfair termination.

What this practically means

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Executive summary

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The Claimant, formerly employed by Kisii University, was engaged by the Respondent as an Assistant Registrar Grade 12 on a one-year fixed-term contract commencing 2nd June 2022, and by letter dated 17th June 2022 her terms were changed to permanent and pensionable. By letter dated 2nd June 2023 the Respondent informed her that her one-year contract had ended and would not be renewed, directing her to vacate. The Claimant sued for unfair and unlawful termination, seeking declarations, damages, aggravated damages, withheld salary, leave allowances and costs. The Respondent denied the claim, contending that the Claimant was irregularly recruited by the Management Committee without Council authority under the Universities Act and the Koitaleel Samoei University College Order, 2018, that her contract was void ab initio, and counterclaimed for a refund of Kshs. 8,398,221.80 paid to her. The court found the recruitment process was in fact authorized by the Council, which had approved internal advertisement of 18 posts, and that any lapses were of the Respondent's own making and could not be visited on the Claimant. The Respondent's own witness admitted the Claimant was never given a hearing. The court held the termination unlawful, awarded four months' salary as compensation under section 49(4) of the Employment Act, with costs and interest, and dismissed the counterclaim with costs. Claims for constructive dismissal, aggravated damages, withheld salary and leave allowances were declined for want of proof or on the facts.

Key legal issues

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01

Whether the Management Committee had capacity to employ the Claimant

Holding

The recruitment process was authorized by the Council; only the entry point, not the appointment itself, was questioned, and the Council never formally withdrew or annulled the Claimant's appointment

Reasoning

Section 35 of the Universities Act and the Koitalel Samoei University College Order place employment of staff with the Council, but the Council approved internal advertisement of 18 posts including the Claimant's, and the HR Committee agreed appointments be staggered in phases. The Respondent did not produce the December 2020 Council resolutions or any statutes governing recruitment, nor minutes between July 2021 and June 2022. No letter withdrawing the impugned letter issued until the Claimant sought implementation.

p. 20
02

Whether the Claimant's employment was unlawfully terminated

Holding

The termination was unlawful

Reasoning

The Respondent's witness admitted the Claimant was never given a show-cause letter or invited to any disciplinary hearing, there were no disciplinary issues against her, and her revocation had nothing to do with her qualifications. If there was any irregularity in her appointment, it had to be resolved lawfully with proper explanation and notice to her. The letter of 2nd June 2023 simply declared her contract ended.

p. 20
03

Whether the Claimant was constructively dismissed

Holding

No - there was an overt termination, not constructive dismissal

Reasoning

The Claimant was issued with a letter informing her that her one-year contract had come to an end and would not be renewed. Constructive dismissal is covert, whereas this was an overt termination. The court therefore declined the declaration of constructive dismissal but found a termination occurred.

Legal principles established

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  • Lapses or irregularities in an employee's appointment that are of the employer's own making should not be visited upon the employee; any irregularity must be resolved lawfully with proper explanation and notice
  • Termination of employment without notice, reason or disciplinary hearing is unlawful
  • A letter informing an employee that a fixed-term contract has come to an end and will not be renewed is an overt termination, not constructive dismissal

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was unlawful and unfair
  2. 2.Compensation of 4 months' salary for unfair termination under section 49(4) of the Employment Act
  3. 3.Costs of the claim to the Claimant with interest on the decretal sum at court rates
  4. 4.The Respondent's counterclaim is dismissed with costs to the Claimant

Authorities

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Legislation

  • Employment Actsections 41(1) and (2), 43, 44(4), 45(2), 49(4)
  • Universities Actsections 25, 35, 35(1)(c), 36
  • Koitaleel Samoei University College Order, 2018 (Legal Notice No. 177 of 6th September 2018)paragraphs 11, 12, 14(1), 14(2), 17, 24; regulations 12(c), 14(2), 17
  • Fair Administrative Actions ActNot specified

Cases cited (7)

  • Pius Machofu Isindu vs Lavington Security Guards Limited
    (2017) eKLR
  • Walter Ogal Auro vs Teachers Service Commission
    (2013) eKLR
  • Aggrey Lukorito Wasike vs Kenya Power & Lighting Company Limited
    (2016) eKLR
  • Thomas Olum Miyago & another vs S.C Johnson & Son Kenya Limited
    [2020] eKLR
  • Kenya Airways Limited v Satwant Singh Flora
    (2013) eKLR
  • Miguna v The Standard Group Ltd & 4 others
    [2017] eKLR
  • John v GM Limited
    [1993] QB 586
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair and unlawful termination of employment (Employment 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, "Chemtai v Koitalel Samoei University College (Employment and Labour Relations Cause E015 of 2023) [2024] KEELRC 2771 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2771/eng@2024-11-07

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