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ELRCPartially AllowedCause arising from Nairobi High Court Civil Case No. 370 of 2008 (transferred)

Wilfred Samson Mutua v Kenya Wildlife Service [2014] KEELRC 261 (KLR)

Employment and Labour Relations Court
22 September 2014
4,200 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court found KWS wrongly fired its IT head but, because the old 1976 law applied, awarded him only 10 days' notice pay.

What this practically means

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Executive summary

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The Claimant, formerly Head of Information Technology at Kenya Wildlife Service, sued for unlawful and wrongful termination of his three-year fixed-term contract, which was terminated effective 30th September 2005 on the ground that he had attained the mandatory retirement age of 55 years, having been recruited at 56. He sought general, punitive/exemplary and special damages of Kshs.6,679,300, 31% gratuity, costs and interest. The court, transferred from the High Court under Article 162(2)(a), adopted the Claimant's issues. It held the applicable law was the Employment Act 1976, not the 2007 Act or the 2010 Constitution, both of which postdated the termination. The Executive Director who terminated the contract was properly in office, the defective gazette notice having been corrected, distinguishing Mutuma Angaine. The court found termination on the age ground wrongful, since the Respondent's own Manual permitted fixed-term engagement of persons over 55, but limited damages to the agreed notice period under the 1976 Act, awarding only 10 days' unserved notice. Malice was not proved and was held irrelevant where procedure and reason are valid. The gratuity claim failed: the contract expressly excluded gratuity and the letter of 5th November 2004 granting it was found not genuine. Punitive/exemplary damages and unproved special damages were dismissed. Terminal benefits held by the Respondent were ordered released together with the 10 days' notice pay, with each party bearing its own costs.

Questions the Court framed

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

  1. 1.Whether the Claimant was lawfully and procedurally employed by the Respondent
  2. 2.Whether the Claimant's contract of employment was lawfully and/or procedurally terminated
  3. 3.Whether the termination of the Claimant's employment contract was actuated by malice
  4. 4.Whether the Claimant is entitled to the 31% gratuity
  5. 5.Whether the Respondent was in breach of the employment contract it had offered the Claimant
  6. 6.Who shall bear the costs of the suit

Key legal issues

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01

Applicable law at time of termination

Holding

The Employment Act 1976 and pre-2010 law applied; neither Section 45 of the Employment Act 2007 nor Article 27(4) of the Constitution 2010 was available.

Reasoning

The contract was terminated effective 30th September 2005, before the 2007 Act and the 2010 Constitution came into force. The court therefore declined to apply Section 45 of the 2007 Act or Article 27(4), applying instead the 1976 Act and the Respondent's Human Resource Policy and Procedures Manual, under which damages for breach were limited to notice pay.

p. 5
02

Lawfulness of termination on ground of age

Holding

Termination on the basis of the mandatory retirement age was wrongful because the Respondent's own Manual (clause B3(ii)) permitted fixed-term engagement of persons above 55 years, a requirement that did not exist at recruitment.

Reasoning

The termination letter stated the Board resolved not to retain anyone above 55 years. But the Manual's clause B3(ii) expressly contemplated fixed-term contracts for skilled professionals or persons who had exceeded the retirement age of 55. Terminating the Claimant on a ground inconsistent with the recruitment framework was wrong, though the court limited the remedy to unserved notice under the 1976 Act.

p. 6
03

Validity of the appointment of the terminating Executive Director

Holding

The Executive Director (Mr. Kipngetich) was properly in office; the gazette notice defect had been corrected by the time of hearing.

Reasoning

The Claimant argued the gazette notice revoking his predecessor's appointment was irregular. The court distinguished Mutuma Angaine, noting the notice had been corrected and the Claimant dealt with and addressed the director without any doubt as to identity, unlike the land-parcel-number error in that appeal.

p. 5
04

Malice

Holding

Malice was not proved; in any event malice does not invalidate a properly conducted termination.

Reasoning

The Claimant relied on the timing of the performance contract, the advertisement of his position, the late handing over of the termination letter and unanswered appeals. The court noted the Claimant admitted the performance contract signing was planned months ahead, and held malice irrelevant where procedure and reason are valid.

p. 6
05

Entitlement to 31% gratuity

Holding

The Claimant was not entitled to gratuity; the contract expressly excluded it and the letter of 5th November 2004 was not genuine.

Reasoning

The contract provided a consolidated all-inclusive package expressly excluding gratuity. The gratuity letter lacked the Claimant's personal number, was filed in a recruitment file, was not copied to Human Resources, and its genuineness was inconsistent with the Claimant's own December 2004 request to incorporate gratuity. CW2 admitted he had no authority to grant it.

p. 7
06

Lawfulness of recruitment

Holding

The manner of recruitment was immaterial since the recruitment was valid up to termination; in any event the Manual made no provision for head-hunting.

Reasoning

The court held recruitment validity was irrelevant to the claim. It nonetheless noted the Manual provided no procedure for recruitment by the Executive Director without advertisement or head-hunting, and that CW2 admitted no interview, no Board resolution, and Board notification only after the fact.

p. 4

Legal principles established

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  • A party cannot rely on the Employment Act 2007 or the Constitution 2010 in respect of a termination that occurred before those instruments came into force.
  • Under the Employment Act 1976, damages for wrongful dismissal were limited to the agreed or reasonable period of notice.
  • Exemplary damages are not recoverable in actions for wrongful dismissal.
  • Malice is not a ground for invalidating a termination of employment effected with proper procedure and valid reason.
  • Special damages must be specifically proved.

Court orders

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  1. 1.Award of 10 days' salary in lieu of the notice period the Claimant did not serve
  2. 2.Release to the Claimant of terminal benefits held by the Respondent (Kshs.703,454.55 gross / Kshs.498,486.55 net as admitted), plus the 10 days' notice pay
  3. 3.Dismissal of the claim for punitive/exemplary damages
  4. 4.Dismissal of the claim for special damages of Kshs.6,679,300 for want of proof
  5. 5.Each party to bear its own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(a) and Article 165(5)(b) of the Constitution of Kenya 2010 (exclusive jurisdiction over employment and labour matters), following transfer from the High Court

Relief refused

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General damages for unlawful and wrongful dismissal beyond notice pay

Under the Employment Act 1976 damages for breach were limited to the agreed notice period; the Claimant was awarded only the unserved 10 days of the 2 months' notice

p. 7

General damages for breach of contract (separate head)

Subsumed in the notice-pay analysis; only unserved notice compensated

Punitive/exemplary damages

Malice was not proved, and exemplary damages are not payable in wrongful dismissal actions

p. 7

Special damages of Kshs.6,679,300

No evidence adduced in support

p. 8

31% gratuity

Contract expressly excluded gratuity and the letter of 5th November 2004 was found not genuine; CW2 admitted he lacked authority to grant gratuity

p. 7

Costs

Each party bears its own costs

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.

I find that it was wrong for the Respondent to terminate the contract of the Claimant on the basis of a requirement that did not exist at the time of his recruitment.
p. 6wrongful termination on ground of age
I further wish to clarify that the law applicable at the time of termination of the claimant's employment was the Employment Act (1976) and not Employment Act (2007).
p. 5retrospectivity / applicable law
malice is not relevant in cases of termination of employment contracts. If the proper procedure is used and there is valid reason, a termination of employment contract cannot be invalidated by malice.
p. 6malice in termination
I would therefore award the Claimant only an additional 10 days notice to cover the period of notice that he did not serve.
p. 7measure of damages under Employment Act 1976
I find it reasonable that each party bears its costs. On payment of the claimant's terminal benefits held by the Respondent, I order that the same be released to the Claimant as admitted by the Respondent but in addition, payment of 10 days notice that was not served by the Claimant due to the late handing over of the letter of termination.
p. 8final orders and costs
I find that the claimant is not entitled to gratuity.
p. 7gratuity claim

Issues in the judgment

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minor

The judgment inconsistently dates the signing of the performance contract, variously 4th, 3rd and 5th August 2005, and inconsistently dates the Respondent's letter declining gratuity (referred to as both 5th August 2005 and a response to a 6th December 2004 memo).

minor

Citation for Kenya Ports Authority vs. Edward Otieno appears defective ('Civil Appeal No. 120 of 1179 (UR)') - an implausible year number.

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, "Wilfred Samson Mutua v Kenya Wildlife Service [2014] KEELRC 261 (KLR)", Case Analysis (2014). Cause arising from Nairobi High Court Civil Case No. 370 of 2008 (transferred). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/261/eng@2014-09-22

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