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ELRCPartially AllowedNot stated in the judgment extract (Employment and Labour Relations Court cause)

Kawino v Population Services International (PSI) (Cause 2563 of 2016) [2025] KEELRC 1436 (KLR)

Employment and Labour Relations Court of Kenya
15 May 2025
CBC. N. Baari
6,681 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a foreign 'at will' contract clause can't shield an employer from unfair termination laws, awarding the employee about USD 33,833.

What this practically means

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Executive summary

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The Claimant, a Kenyan employed as Business Operations Technical Advisor for the Respondent in Juba, South Sudan from January 2016, was evacuated to Nairobi in July 2016 during South Sudanese violence and terminated by email on 9th August 2016 for allegedly breaching security protocols by carrying more than one bag during evacuation. The Respondent relied on the contract's 'at will' clause and Clause 13(c) and (d) selecting District of Columbia law and arbitration in Washington DC. Jurisdiction had earlier been upheld in a ruling of 7th October 2019, and the court declined to revisit that issue. On the applicable law, the court applied the objective most-real-connection test: the Claimant was recruited in Kenya, paid and taxed in Kenya, never worked in the United States, and was terminated in Nairobi; the foreign law clause was an attempt to lock him out of court, so Kenyan law applied. On fairness, the court held the termination breached Section 41 of the Employment Act and Articles 41, 47 and 50 of the Constitution: the termination email issued and took effect the same day, with no prior notice or hearing, and the 'at will' clause could not displace statutory protections. Substantively, the Respondent failed to prove the breach - the boarding pass showed a single 11kg bag within the 15kg limit - and no investigation was conducted; the earlier poor-performance grounds were dropped. The termination was found procedurally and substantively unfair. The court declared the termination unlawful and unfair, awarded one month's salary in lieu of notice (USD 4,833.32) and six months' salary as compensation (USD 28,999.92), dismissed the August salary claim as the Claimant was paid for days worked, and awarded costs to the Claimant. The 18 months' loss-of-salary claim was not awarded.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Kenya Laws and specifically the Employment Act is applicable to the dispute
  2. 2.Whether the Claimant's termination was lawful
  3. 3.Whether the Claimant is entitled to the prayers sought

Key legal issues

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01

Applicable law to the employment dispute

Holding

Kenyan law applies despite Clause 13(c) choosing District of Columbia law; the Claimant never worked in Washington DC and the breaches and termination occurred in Nairobi

Reasoning

The court applied the objective test of the most real connection. The Claimant was recruited, interviewed and terminated in Kenya, paid through a Kenyan bank account, paid taxes in Kenya, performed the contract in Kenya and South Sudan, and never travelled to the United States. The foreign clause was seen as an attempt to lock the employee out of court, providing strong reason to override it.

p. 10
02

Procedural fairness of the termination

Holding

The termination was unprocedural and unlawful; no notice or hearing was accorded before the termination email of 9th August 2016

Reasoning

The termination email was sent and effected on the same day. It was the Claimant who sought a meeting after termination. Section 41 of the Employment Act and Articles 41, 47 and 50 of the Constitution mandate notice, reasons and a hearing; an 'at will' clause cannot oust these protections. The court found the Respondent made no attempt to comply with fair procedure requirements.

p. 11
03

Validity of the reasons for termination

Holding

The Respondent did not prove breach of security protocols, and the reasons were substantively unfair

Reasoning

The Claimant's boarding pass showed a single 11kg bag within the 15kg limit. The earlier poor-performance allegations (PIP) were dropped and termination was premised on a different ground, suggesting the reasons were not what the Respondent genuinely believed. No investigation was conducted, applying the Burchell standards quoted in British American Tobacco.

p. 12
04

Reliefs

Holding

Notice pay and 6 months' compensation awarded; August salary claim dismissed

Reasoning

Having found the termination unfair, the court awarded notice pay since the termination was instant. Compensation was capped at 6 months under Sections 49 and 50 of the Employment Act given only 7 months of service, heeding authority that remedies redress injury proportionately and are not for unjust enrichment.

p. 13

Legal principles established

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  • A foreign choice-of-law/jurisdiction clause in an employment contract may be overridden where the contract has its strongest connection with Kenya and the clause is intended to lock the employee out of court
  • An employer must, before terminating employment, inform the employee of the reasons and accord a hearing, failing which the termination is unprocedural and unlawful
  • An 'at will' termination clause cannot displace statutory and constitutional protections of fair procedure
  • For an employer's reasons for termination to be upheld, the employer must have believed the employee guilty, have reasonable grounds for that belief, and have carried out reasonable investigation

Court orders

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  1. 1.A declaration that the Claimant's termination was unlawful and unfair
  2. 2.That the Respondent shall pay the Claimant one month's salary in lieu of notice at USD 4,833.32
  3. 3.That the Respondent shall pay the Claimant 6 months salary as compensation for the unfair termination at USD 28,999.92
  4. 4.The Respondent shall also bear the costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

CB
majority

Wrote the judgment

Jurisdiction invoked
Jurisdiction assumed following the Court's ruling of 7th October 2019; dispute governed by Kenyan law including the Employment Act, 2007 and Articles 41, 47 and 50 of the Constitution of Kenya

Relief refused

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August salary of USD 8,842

The Claimant admitted he was paid for the 9 days worked in August 2016 and did not work after 9th August 2016

p. 12

12 months' salary in compensation for unfair termination (reduced to 6 months)

Considering the short length of service of only 7 months, maximum compensation was not warranted

p. 13

Loss of salary for 18 months (USD 159,156)

Not addressed in the analysis; not among the reliefs awarded in the disposition

Costs

The Respondent shall bear the costs of the suit

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the upshot, the Claimant's claim succeeds and orders granted as follows
p. 13disposition
a. A declaration that the Claimant's termination was unlawful and unfair.
p. 13final orders - declaration
b. That the Respondent shall pay the Claimant one month's salary in lieu of notice at USD 4,833.32
p. 13final orders - notice pay
c. That the Respondent shall pay the Claimant 6 months salary as compensation for the unfair termination at USD 28,999.92
p. 13final orders - compensation
d. The Respondent shall also bear the costs of the suit.
p. 13final orders - costs
In whole, I find and hold that the Claimant's termination was both procedurally and substantively unfair and unlawful.
p. 12unfair termination
In light of the foregoing, I find and hold that the Claimant has shown strong reasons for this court to override the territorial jurisdiction clause in the contract, and I thus return that the laws of Kenya are applicable.
p. 10applicable law / jurisdiction clause
To say that the Respondent violated the laws herein cited, is an understatement. The Claimant, true to the Respondent, was terminated at will.
p. 11at-will termination versus statutory protection

Issues in the judgment

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minor

The amount of the relief sought for one month's notice (USD 8,842) differs from the amount awarded (USD 4,833.32), without explanation

minor

The court states the notice claim 'succeeds and is awarded as prayed' but the disposition awards an amount different from the prayer

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kawino v Population Services International (PSI) (Cause 2563 of 2016) [2025] KEELRC 1436 (KLR)", Case Analysis (2025). Not stated in the judgment extract (Employment and Labour Relations Court cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1436/eng@2025-05-15

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