Automated Summary
Key Facts
The Claimant, Dr. Abdulkarim Kassim Seif, was employed by the County Government of Lamu's Department of Medical Services under a one-year fixed-term contract starting 8 May 2020. The contract was renewed in November 2021 for another year (1 October 2021–30 September 2022), but no written renewal was provided after the second contract expired. The Respondents claimed a third fixed-term contract existed until 30 September 2023, but failed to produce written evidence. The Claimant was terminated in September 2023 without notice during sick leave, with the Respondents alleging desertion of duty after a forced transfer. The court found the third contract was not in writing, concluding the Claimant served under a month-to-month open-ended contract post-September 2022. The termination was deemed both procedurally and substantively unfair due to lack of notice, no valid grounds, and failure to follow statutory procedures under the Employment Act.
Issues
- Under what form of employment contract was the Claimant at the time of separation?
- Subject to the contract form, was the termination of his employment unfair?
- Is the Claimant entitled to the reliefs sought?
Holdings
- The court determined that the Claimant's employment after the second fixed-term contract lapsed was a month-to-month open-ended contract, not a third fixed-term contract as claimed by the Respondent. This finding was based on the Respondent's failure to produce a written contract and the statutory burden of proof under Section 10(7) of the Employment Act.
- The Claimant was awarded one month's salary in lieu of notice (KShs 243,215) and compensation for unfair termination equivalent to three months' gross salary (KShs 729,645). The court also mandated issuance of a service certificate within 30 days. Claims for unpaid leave, public holiday pay, transfer allowance, and baggage allowance were rejected due to lack of evidence.
- The termination of the Claimant's employment was ruled both procedurally and substantively unfair. The court found no valid notice was provided, and the Respondent did not follow required procedural steps under Sections 41 and 45 of the Employment Act. Additionally, the termination was deemed retaliatory and without justification.
Remedies
- The 2nd Respondent ordered to issue a certificate of service to the Claimant within 30 days of the judgment
- Declaration that the termination of the Claimant's employment was both procedurally and substantively unfair as per section 45[2] of the Employment Act
- Compensation of three (3) months' gross salary (KShs 729,645) awarded under section 49[1][c] of the Employment Act for unfair termination
- Award of one month's salary in lieu of notice (KShs 243,215) under sections 35 and 36 of the Employment Act
Monetary Damages
972860.00
Legal Principles
- Under Section 10(7) of the Employment Act, the employer (Respondent) bore the burden to prove the nature of the employment contract immediately before separation, as the term was in dispute and required to be in writing. The court emphasized that this statutory obligation was not fulfilled by the 2nd Respondent.
- The termination was deemed procedurally unfair due to the employer's failure to adhere to Section 41 of the Employment Act, which mandates informing the employee of termination intentions, allowing representation, and considering such representations. The court found these procedural requirements were not met, violating principles of natural justice.
Precedent Name
- Grace Wangui Munyaka v Board of Governors, Nyeri Baptist High School
- Wanjohi v SGA Security Solutions Limited
- Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu
Cited Statute
Employment Act
Judge Name
K Ocharo Kebira
Passage Text
- 53. The Claimant contended that his employment was unfairly terminated. Having held as I have hereinabove, I am convinced that in the circumstances of the matter, a summary dismissal against the Claimant occurred.
- 57. Without much ado, it can be easily concluded that the stipulations of section 41 of the Act were not adhered to. The dismissal of the Claimant from employment was therefore procedurally unfair by dint of the provisions of section 45[2] of the Employment Act.
- 63. ... the 2nd Respondent's failure to adhere to the dictates of procedural and substantive fairness ... conclude that the Claimant is entitled the compensatory relief contemplated under the section, to three (3) months gross salary.