Seif v King Fahd Lamu County Refferal Hospital & 2 others (Cause E001 of 2024) [2025] KEELRC 1767 (KLR)
The bottom line
#A Kenyan court ruled a doctor's dismissal unfair because the county government couldn't prove his contract had expired, awarding him notice pay and compensation.
What this practically means
#Executive summary
#Key legal issues
#Nature of the contract of employment at the time of separation
After lapse of the second written fixed-term contract, the Claimant served on a month-to-month open-ended contract; the alleged third fixed-term contract was not reduced to writing and the employer failed to prove it
The relationship began with written one-year fixed-term contracts. The Respondent's witness admitted the third contract was not in writing and gave no explanation for the omission. Under section 10(7) of the Employment Act, the burden of proving a disputed written term lay on the employer, who produced no written contract. A payslip bearing an expiry acronym could not prove the contested term. The court declined to imply renewal on the authority of Grace Wangui Munyaka, finding it distinguishable and unpleaded.
Whether the termination was substantively justified
No valid or fair reason for the dismissal was demonstrated; the disciplinary issue of absconding was abandoned when the contract expired
Summary dismissal under section 44(3) requires fundamental breach by the employee's conduct. The Respondent's witness conceded that the absconding allegation was not pursued as it was overtaken by the expiry of the contract. No evidence of gross misconduct was placed before the court, so there was no valid or fair reason for the dismissal, and the dismissal without notice was unlawful under section 44(2).
Whether the termination was procedurally fair
Section 41 procedural requirements were not met; the dismissal was procedurally unfair under section 45(2)
Section 41 obliges an employer contemplating termination to inform the employee of the grounds, accord an opportunity to make representations, and consider those representations before deciding. Although a show-cause letter was issued on absconding and the Claimant responded, the Respondent did not adhere to the section 41 stipulations before terminating; the dismissal was therefore procedurally unfair under section 45(2).
Quantum of compensation under section 49(1)(c)
Three months' gross salary awarded as compensation for the unfair termination
The award under section 49(1)(c) is discretionary, guided by the circumstances of each case. The court considered the Claimant's length of service (about three years), the Respondent's failure to adhere to procedural and substantive fairness, and the absence of any proven contribution by the Claimant to the termination, concluding that three months' gross salary was the appropriate compensatory award.
Legal principles established
#- Where a term of a contract of service required to be in writing is disputed, the burden of proving it rests on the employer under section 10(7) of the Employment Act
- A payslip prepared unilaterally by the employer cannot ordinarily prove a disputed term of employment
Court orders
#- 1.A declaration that the termination of the Claimant from employment was both procedurally and substantively unfair.
- 2.Salary in lieu of notice of KShs. 243,215.00.
- 3.Compensation pursuant to section 49(1)(c) of the Employment Act of KShs. 729,645.00 (three months' gross salary).
- 4.The 2nd Respondent to issue a certificate of service to the Claimant within 30 days of the judgment.
- 5.Costs of the suit to the Claimant.
- 6.Interest at court rates on the awarded sum from the date of judgment till full payment.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim under sections 35, 41, 43, 44, 45, 47(5), 49 and 10(7))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Seif v King Fahd Lamu County Refferal Hospital & 2 others (Cause E001 of 2024) [2025] KEELRC 1767 (KLR)", Case Analysis (2025). ELRC Cause (Memorandum of Claim dated 14th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1767/eng@2025-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.