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ELRCPartially AllowedCause Number 167 [N] of 2009

Geoffrey Kinyanjui & 4 others v National Environment Management Authority [2015] KEELRC 493 (KLR)

Industrial Court of Kenya at Nairobi
2 October 2015
4,728 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled NEMA wrongly graded five employees on transfer, awarded them over Kshs. 2.8 million, and found two contracts unfairly terminated.

What this practically means

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Executive summary

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Five former employees of defunct Ministry of Environment departments (NES, PPCSA and DRSRS) transitioned into NEMA on its creation and claimed wrongful grading, discrimination, and unfair termination of their contracts. They alleged that although a Government decision required them to be engaged in equivalent grades, NEMA placed them in lower grades, as confirmed by the Efficiency Monitoring Unit's Report on corruption at NEMA. They sought salary arrears, 12 months' compensation for unfair termination, general damages, costs and interest. NEMA contended the employees joined on fresh contracts, that the contracts expired rather than being terminated, and that the 4th and 5th Claimants elected early retirement under the 50-year rule. The court, per Rika J, held the grading was flawed and discriminatory, relying on the uncontradicted EMU Report, and that acceptance of employment terms did not cure the irregularity. It awarded the Schedule 1 figures totalling Kshs. 1,966,070 for wrong grading, rejecting the larger pleaded figures as unjustified. On termination, the court found Clause 2.6.2 created an expectation of renewal; the 1st and 3rd Claimants, who applied for renewal and continued working after expiry, were unfairly denied renewal without reasons and each received 12 months' salary. Claims by the 2nd Claimant (who returned to the Ministry) and the 4th and 5th Claimants (who elected early retirement) for unfair-termination compensation failed. Costs were awarded to the Claimants, with interest at 14% p.a. on the principal after 30 days. Signed 28 July 2015, delivered 2 October 2015.

Questions the Court framed

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

  1. 1.Whether the Claimants were improperly graded and therefore deprived of their rightful benefits by the Respondent
  2. 2.Whether the Claimants' contracts were unfairly and unlawfully terminated
  3. 3.Whether the Claimants are entitled to arrears of salary, damages and compensation

Key legal issues

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01

Improper and discriminatory grading

Holding

The Claimants were placed in wrong Job Grades; the grading was flawed and discriminatory, as evidenced by the uncontradicted EMU Report, and acceptance of terms did not cure the irregularity.

Reasoning

The EMU Report found the Board of Management failed to consider qualifications and experience, with Senior Officers graded below Junior Officers. The Report was not contradicted by the Respondent. The Inter-Ministerial Task Force required recruitment to follow Public Service Commission standards of fairness and equality; letters of appointment issued against a background of official corruption violated those standards and the Claimants were economically injured.

p. 6
02

Unfair termination / non-renewal of fixed-term contracts

Holding

The contracts of the 1st and 3rd Claimants were unfairly terminated: Clause 2.6.2 created an expectation of renewal, they applied for renewal and continued working after expiry, yet were given no reasons for non-renewal until 31st January 2007.

Reasoning

Clause 2.6.2 provided initial 3-year contracts were subject to renewal on mutually agreed terms. The Claimants applied for renewal in August 2006 and worked past the November 2006 expiry, being told of non-renewal only on 31st January 2007. The PS in the parent Ministry supported the finding that reasons for non-renewal should have been communicated at an appropriate time. Compensation of 12 months' salary was awarded to each.

p. 8
03

Voluntary early retirement as bar to unfair-termination claim

Holding

The 4th and 5th Claimants' election of early retirement under the 50-year rule amounted to voluntary variation of their contracts, defeating their unfair-termination claims.

Reasoning

Both Claimants expressed their desire for early retirement while their contracts subsisted, and their applications were accepted. This constituted a voluntary variation of the terms and conditions in their letters of employment and the Terms and Conditions of Service. Their grievance, if any, should have been confined to grading.

p. 8

Legal principles established

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  • An expectation of renewal arises where a contract clause provides for renewal on mutually agreed terms, and notice and reasons for non-renewal must be availed
  • Acceptance of employment terms does not cure a flawed and discriminatory grading process
  • The court has emphasized the need to correct pay disparity shown to exist through discrimination and wrong grading

Court orders

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  1. 1.A declaration that the Claimants were placed in the wrong Job Grades by the Respondent
  2. 2.Payment to the Claimants within 30 days of a total of Kshs. 1,966,070 in compensation for the wrong grading as particularized (1st Claimant Kshs. 919,110; 2nd Kshs. 255,765; 3rd Kshs. 261,720; 4th Kshs. 344,535; 5th Kshs. 184,940)
  3. 3.A declaration that the 1st and 3rd Claimants' contracts of employment were unfairly terminated
  4. 4.Payment to the 1st Claimant of Kshs. 575,436 and to the 3rd Claimant of Kshs. 299,016 in compensation for unfair termination within 30 days
  5. 5.Costs to the Claimants
  6. 6.The principal sum to attract interest at the rate of 14% p.a. upon lapse of the 30-day period

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Rule 27 [1] [a] of the Industrial [Procedure] Rules 2010

Relief refused

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Claimants' pleaded salary-arrears figures of Kshs. 1.8m, 2.2m, 0.6m and 0.9m (including sums to age 55)

Claimants did not show how these amounts were arrived at; the court instead adopted the Schedule 1 computation in the Statement of Claim

p. 7

Compensation for unfair termination for the 2nd, 4th and 5th Claimants

The 2nd Claimant returned to the Ministry and suffered no economic injury; the 4th and 5th Claimants elected early retirement under the 50-year rule, amounting to voluntary variation of their contracts

p. 8

Costs

Costs to the Claimants

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.

The Claimants were placed in the wrong Job Grades by the Respondent.
p. 8declaration on grading - final orders
[b] They shall within 30 days of the delivery of this decision be paid a total of 1,966,070 in compensation for the wrong grading as particularized in paragraph 27 above.
p. 8compensation order - final orders
[c] The 1st and 3rd Claimants' contracts of employment were unfair terminated.
p. 8declaration on unfair termination - final orders
[e] Costs to the Claimants.
p. 8costs - final orders
[f] The principal sum to attract interest at the rate of 14% p.a. upon the lapse of the 30 day period indicated in [b] and [d] above.
p. 8interest - final orders
A letter of appointment which placed an Employee in a Grade lower than that served under the Ministry, was in violation of the standards of fairness and equality of treatment in the public service, and could never be endorsed by any judicial tribunal exercising its mind fairly, reasonably and impartially.
p. 6fairness and equality in public-service grading
The irregularity was not cured or otherwise mitigated, by the Claimants' acceptance of the terms and conditions of service.
p. 6effect of accepting tainted contract terms

Issues in the judgment

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minor

The judgment contains two different dates: signed at Mombasa on 28th July 2015 but delivered at Nairobi on 2nd October 2015, and the coram indicates Rika heard most of the claim while Abuodha participated in part-hearing and delivery; the dateOfJudgment is recorded as the delivery date.

minor

The final order [c] contains a grammatical error in a formal declaration ('were unfair terminated'), and the Claimant's name appears variously as 'Buigutt'/'Buiggut' and 'Kithuku'/'Kithuka' within 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, "Geoffrey Kinyanjui & 4 others v National Environment Management Authority [2015] KEELRC 493 (KLR)", Case Analysis (2015). Cause Number 167 [N] of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/493/eng@2015-10-02

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