Josephine Mwende v University of Nairobi [2021] KEELRC 49 (KLR)

The court held that the Respondent never pleaded irregularity or illegality of the contract, and parties are bound by their pleadings. Even assuming the issue was open, Section 109 of the Evidence Act placed the burden of proving it on the Respondent. The circular OP/CAB.2/7A relied upon was never placed before the court, and the Respondent did not address whether it had retrospective effect. The defence therefore failed.

The renewed contract ran from 1st October 2015 to 30th September 2016 but was terminated on 4th March 2016. The Respondent advanced no justifiable reason in its pleadings; its assertion that the contract was terminable at any time was unsupported by evidence and rejected by the court. With the illegality defence also rejected, the Claimant's case of premature, unjustified and unlawful termination stood uncontroverted.

Having found the termination was not in accordance with the contract or the law, the court held the Claimant entitled to payment for the remainder of the contract. The pleaded gross salary of Kshs. 30,961 was unchallenged, and the Respondent produced no evidence of terminal dues paid. The court computed the remainder of the contract period at Kshs. 185,766.

The Claimant produced no evidence that gratuity was a term of her employment contract. The court, bound by the Court of Appeal's decision in H. Young & Company EA Limited v Javan Were Mbango, held that gratuity is a gratis payment payable only under terms set out in a contract of service or collective bargaining agreement, as there is no express provision for gratuity in the Employment Act.

Under Section 51 of the Employment Act, issuance of a certificate of service to an employee whose contract has been terminated is an entitlement. The Respondent had claimed the certificate was ready for collection, but the court held the Claimant entitled to it by dint of the statutory provision and ordered issuance within 21 days.