Geoffrey Kinyanjui & 4 others v National Environment Management Authority [2015] KEELRC 493 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimants were improperly graded and therefore deprived of their rightful benefits by the Respondent
- 2.Whether the Claimants' contracts were unfairly and unlawfully terminated
- 3.Whether the Claimants are entitled to arrears of salary, damages and compensation
Key legal issues
#Improper and discriminatory grading
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.
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.
Unfair termination / non-renewal of fixed-term contracts
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.
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.
Voluntary early retirement as bar to unfair-termination claim
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.
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.
Legal principles established
#- 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
#- 1.A declaration that the Claimants were placed in the wrong Job Grades by the Respondent
- 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.A declaration that the 1st and 3rd Claimants' contracts of employment were unfairly terminated
- 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.Costs to the Claimants
- 6.The principal sum to attract interest at the rate of 14% p.a. upon lapse of the 30-day period
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 27 [1] [a] of the Industrial [Procedure] Rules 2010
Relief refused
#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
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
Costs
Costs to the Claimants
Quotable passages
#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.
[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.
[c] The 1st and 3rd Claimants' contracts of employment were unfair terminated.
[e] Costs to the Claimants.
[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.
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.
The irregularity was not cured or otherwise mitigated, by the Claimants' acceptance of the terms and conditions of service.
Issues in the judgment
#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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.