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ELRCPartially AllowedCause No E096 of 2024· [2025] KEELRC 2008 (KLR)

Orori v Public Service Board – Kisii County Government & 2 others (Cause E096 of 2024) [2025] KEELRC 2008 (KLR)

Employment and Labour Relations Court
9 July 2025
2,573 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court ruled Kisii County unfairly cut short an employee's fixed-term contract, awarding notice pay, three months' compensation and costs.

What this practically means

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Executive summary

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The claimant, employed by the Kisii County Government on 2nd January 2018 as the Governor's Personal Assistant and later renewed on a three-year fixed-term contract running to 31st December 2023 at Kshs.191,440 per month, sued over the unilateral variation of his contract. By letter dated 5th September 2022, the 2nd respondent reduced the contract duration from three years to one year and eight months, with salary stopping on 5th September 2022; the claimant's appeal was declined on the ground that he had attained the mandatory retirement age. He sought a declaration of unfair termination, damages, costs and interest. The respondents contended the termination was lawful, that a disciplinary process was fair, and relied on Sections 74 and 75 of the County Governments Act. The court framed two issues: whether the termination was unfair and whether the claimant was entitled to the reliefs sought. It held that the unilateral alteration of a fundamental term of the contract was unlawful, that none of the three alleged reasons for termination (fraud, dependency on the Governor's term, or retirement age) was substantiated - fraud requiring strict proof - and that Sections 74 and 75 of the County Governments Act confer no carte blanche and do not oust the Employment Act. Procedurally, the mandatory requirements of Section 41 of the Employment Act were not met, no notice to show cause or hearing was given, and the termination letter post-dated the effective end of employment. The termination was therefore unfair under Section 45. Judgment was entered for the claimant with a declaration of unfair termination, one month's salary in lieu of notice, compensation equivalent to three months' gross salary, and costs; claims for special, exemplary and punitive damages were dismissed as unsubstantiated. Dated, signed and delivered virtually at Kisumu on 9th July 2025 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Whether the unilateral variation of the claimant's fixed-term contract by the 2nd respondent rendered the termination unfair

Holding

Yes - the unilateral variation of the contract's duration from 3 years to less than 2 years without consultation or written notification was unlawful and the termination had no substantiated reason.

Reasoning

Under Section 10(5) of the Employment Act, any change to matters stipulated in the contract must be made in consultation with the employee and notified in writing. The letter of 5th September 2022 varied the duration without consultation and gave no reason. None of the three alleged reasons - fraud, the Governor's term of office, or retirement age - was substantiated. Fraud must be specifically pleaded and strictly proved; the letters of employment made no reference to the Governor's term; and the fixed-term contract was not tied to age.

p. 3
02

Whether the termination complied with fair procedure

Holding

No - the procedure was flawed: no notice to show cause, no hearing, and the termination letter post-dated the effective end of employment.

Reasoning

Section 41 of the Employment Act imposes mandatory procedural requirements including notice and a hearing before termination on grounds of misconduct. The claimant was not accorded the requisite one month's notice, was not subjected to any disciplinary hearing despite allegations of fraud, and the termination letter dated 5th September 2022 was issued after the employment had already ended on 31st August 2022. Failure to demonstrate compliance with Section 41 rendered the termination procedurally flawed and unfair.

p. 6
03

Whether Sections 74 and 75 of the County Governments Act justified the variation and termination

Holding

No - the provisions give the County Public Service Board no carte blanche, were not shown to have been invoked, and do not displace the Employment Act.

Reasoning

Section 74 merely empowers the Board to regulate engagement of contract employees, and Section 75 can only be invoked where an investigation into an irregular or fraudulent process has been conducted. The Board adduced no evidence that it invoked either provision or conducted any investigation. In any event, the employment relationship remains contractual and the Employment Act continues to apply to it.

p. 5
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What reliefs flow from a finding of unfair termination

Holding

A declaration, one month's salary in lieu of notice, and compensation equivalent to three months' gross salary; unsubstantiated claims for special, exemplary and punitive damages dismissed.

Reasoning

Exercising discretion under Section 49 of the Employment Act, the court considered the claimant's length of service (about 4 years and 8 months), that he did not contribute to the termination, that he appealed wishing to remain in employment, and that he expected to serve his full term. Three months' gross salary was deemed fair compensation, and since no notice was issued, one month's salary in lieu of notice was awarded.

p. 6

Legal principles established

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  • A unilateral variation of a fundamental term of a contract of employment is a repudiation of the contract.
  • For a termination to pass muster the employer must prove both substantive justification and fair procedure.
  • Allegations of fraud must be specifically pleaded and strictly proved.
  • Sections 74 and 75 of the County Governments Act do not oust the provisions of the Employment Act or give the County Public Service Board a carte blanche in dealing with its employees.
  • The procedural tenets in Section 41 of the Employment Act are mandatory.

Court orders

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  1. 1.Declaration that termination of the claimant's employment by the respondents was unfair.
  2. 2.One (1) month's salary in lieu of notice.
  3. 3.Equivalent of three (3) months gross salary as compensation.
  4. 4.Costs of the suit to the claimant.

Authorities

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Legislation

  • Employment ActSection 10(5)
  • Employment ActSection 10(2)(e) and Section 10(1)
  • Employment ActSection 45(2) and Section 45
  • Employment ActSection 41
  • Employment ActSection 49 (referenced in submissions)
  • County Governments ActSections 74 and 75
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (13)

  • Muthaiga County Club V Kudheiha Workers
    [2017] eKLR
  • Josephine M. Ngungu & Others V Plan International
    [2019] eKLR
  • James Ang'awa Atanda & 10 Others V Judicial Service Commission
    [2017] eKLR
  • Western Excavating ECC V Sharp
    [1978] ICR 222
  • Walter Ogal Anuro V Teachers Service Commission
    [2013] eKLR
  • Naima Khamis V Oxford University Press (EA) Ltd
    [2017] eKLR
  • Vijay Morjaria V Nansingh Madhusingh Darbar & another
    [2000] eKLR
  • Patel V Lalji Mkanji
    [1957] EA 314
  • Ndolo V Ndolo
    [2008] IKLR 742
  • Belmont Finance Corporation V Williams Furniture Ltd
  • Urmilla w/o Mahendra Shah V Barclays Bank International Ltd and another
    [1979] eKLR
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    [2017] eKLR
  • Jane Samba Mukala V Ol Tukai Lodge
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (specific enabling provision not cited in the judgment)

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, "Orori v Public Service Board – Kisii County Government & 2 others (Cause E096 of 2024) [2025] KEELRC 2008 (KLR)", Case Analysis (2025). Cause No E096 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2008/eng@2025-07-09

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