Automated Summary
Key Facts
The Employment and Labour Relations Court in Kenya ruled that Arthur Kawino's termination by Population Services International (PSI) was unlawful and unfair. The court found that PSI's claim of 'at will' employment under District of Columbia law did not apply, as the contract was predominantly connected to Kenya. Kawino was terminated in August 2016 for allegedly violating security protocols during evacuation from South Sudan, but the court determined he was not given a proper hearing, violating Kenyan labor laws. PSI was ordered to pay Kawino 6 months' salary (USD 28,999.92) as compensation and one month's notice pay (USD 4,833.32).
Transaction Type
Employment Agreement between Arthur Kawino and Population Services International (PSI)
Issues
- i. Whether the Kenya Laws and specifically the Employment Act is applicable to the dispute;
- ii. Whether the Claimant's termination was lawful; and
- iii. Whether the Claimant is entitled to the reliefs sought.
Holdings
- The court ruled that the Claimant's termination was unlawful and substantively unfair. The Respondent failed to provide a fair hearing, did not investigate the alleged breach of protocol, and the termination occurred without compliance with Kenyan Employment Act and constitutional rights to fair labor practices.
- The court determined that Kenyan law, not the District of Columbia law, governs the employment contract because the contract was primarily performed in Kenya and South Sudan, and the Claimant never worked in the US. This was based on the objective test of real connection and precedents like Dorcas Kemunto Wainaina v IPAS.
- The Claimant was awarded one month's salary in lieu of notice (USD 4,833.32) and six months' salary as compensation for unfair termination (USD 28,999.92). The August salary claim was dismissed as the Claimant only worked 9 days in that month. The Respondent was ordered to bear the costs of the suit.
Remedies
- The Respondent shall bear the costs of the suit.
- One month's salary in lieu of notice at USD 4,833.32.
- Six months' salary as compensation for unfair termination at USD 28,999.92.
- A declaration that the Claimant's termination was unlawful and unfair.
Monetary Damages
33833.24
Legal Principles
- The termination was ruled procedurally unfair due to the Claimant's lack of a hearing. The court emphasized that Kenyan law (Employment Act, Constitution) and international standards (UDHR, ICCPR) require fair administrative action, including the right to be heard before termination. The Claimant was condemned unheard, violating these principles.
- The court prioritized the substantial connection of the contract's performance in Kenya (work trips, payroll, termination location) over the contractual form (District of Columbia law). This principle was used to justify applying Kenyan law despite the foreign jurisdiction clause.
- The court held that the jurisdiction issue was already decided by a prior ruling (Hon. Justice Wasilwa on 7th October 2019), making it res judicata. This prevented the Respondent from relitigating the jurisdictional objection, as the court had already assumed jurisdiction over the matter.
- The court recognized the Claimant's legitimate expectation of being heard before termination, despite the 'at will' clause in the contract. Kenyan statutory and constitutional requirements for fair procedure (Employment Act, Constitution) were deemed to override the contractual term.
- The court acknowledged the principle that parties are bound by their contractual agreements, including the choice of law clause (District of Columbia). However, it found the foreign law inapplicable due to the contract's substantial connection to Kenya, where the work was performed and the dispute arose.
Precedent Name
- Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
- Kanti & Company Limited Vs South British Insurance Company Limited
- Dorcas Kemunto Wainaina v IPAS
- United India Insurance Co. Ltd & 2 Others v East African Underwriters (Kenya) Ltd
- Captain (RTD) Charles K.W. Masinde v Intergovernmental Authority on Development
- Mary Mutanu Mwendwa v Ayuda
- Seffontein v. Balmoral Control Contracts SA (pty)
- British American Tobacco (K) Ltd v Kenyan Union of Commercial Food and Allied Workers (KUCFAW)
Key Disputed Contract Clauses
- The offer letter included an 'at will' clause allowing termination without cause under US law. The court held this clause could not override Kenyan labor laws (Employment Act, Constitution) requiring procedural fairness, including notice and a hearing, before termination.
- Clause 13(c) and (d) of the Employment Agreement specified that the contract was governed by the laws of the District of Columbia and that disputes would be arbitrated in Washington, D.C. The court rejected this clause's applicability, finding the contract's performance and termination were predominantly connected to Kenya and South Sudan.
Cited Statute
- International Covenant on Civil and Political Rights
- Universal Declaration of Human Rights
- Employment Act
- Constitution of Kenya
Judge Name
C. N. Baari
Passage Text
- I therefore find the Claimant's termination unprocedural and unlawful.
- A declaration that the Claimant's termination was unlawful and unfair... 6 months' salary as compensation for the unfair termination at USD 28,999.92
- It is clear to this court that although clause 4 of the Claimant's contract envisaged that he would move to work in Washington DC, upon authorization, the said authorization did not come and the Claimant neither travelled nor worked in Washington DC. It is also not in dispute that the alleged breaches subject of this suit and the subsequent termination of the Claimant occurred in Nairobi, Kenya.
Damages / Relief Type
- Declaration that the Claimant's termination was unlawful and unfair.
- Six months' salary as compensation for unfair termination at USD 28,999.92.
- Respondent to bear the costs of the suit.
- One month's salary in lieu of notice at USD 4,833.32.