Kawino v Population Services International (PSI) (Cause 2563 of 2016) [2025] KEELRC 1436 (KLR)
The bottom line
#Kenya's Employment Court ruled a foreign 'at will' contract clause can't shield an employer from unfair termination laws, awarding the employee about USD 33,833.
What this practically means
#Executive summary
#Key legal issues
#Applicable law to the employment dispute
Kenyan law applies despite Clause 13(c) choosing District of Columbia law; the Claimant never worked in Washington DC and the breaches and termination occurred in Nairobi
The court applied the objective test of the most real connection. The Claimant was recruited, interviewed and terminated in Kenya, paid through a Kenyan bank account, paid taxes in Kenya, performed the contract in Kenya and South Sudan, and never travelled to the United States. The foreign clause was seen as an attempt to lock the employee out of court, providing strong reason to override it.
Procedural fairness of the termination
The termination was unprocedural and unlawful; no notice or hearing was accorded before the termination email of 9th August 2016
The termination email was sent and effected on the same day. It was the Claimant who sought a meeting after termination. Section 41 of the Employment Act and Articles 41, 47 and 50 of the Constitution mandate notice, reasons and a hearing; an 'at will' clause cannot oust these protections. The court found the Respondent made no attempt to comply with fair procedure requirements.
Validity of the reasons for termination
The Respondent did not prove breach of security protocols, and the reasons were substantively unfair
The Claimant's boarding pass showed a single 11kg bag within the 15kg limit. The earlier poor-performance allegations (PIP) were dropped and termination was premised on a different ground, suggesting the reasons were not what the Respondent genuinely believed. No investigation was conducted, applying the Burchell standards quoted in British American Tobacco.
Reliefs
Notice pay and 6 months' compensation awarded; August salary claim dismissed
Having found the termination unfair, the court awarded notice pay since the termination was instant. Compensation was capped at 6 months under Sections 49 and 50 of the Employment Act given only 7 months of service, heeding authority that remedies redress injury proportionately and are not for unjust enrichment.
Legal principles established
#- A foreign choice-of-law/jurisdiction clause in an employment contract may be overridden where the contract has its strongest connection with Kenya and the clause is intended to lock the employee out of court
- An employer must, before terminating employment, inform the employee of the reasons and accord a hearing, failing which the termination is unprocedural and unlawful
- An 'at will' termination clause cannot displace statutory and constitutional protections of fair procedure
- For an employer's reasons for termination to be upheld, the employer must have believed the employee guilty, have reasonable grounds for that belief, and have carried out reasonable investigation
Court orders
#- 1.A declaration that the Claimant's termination was unlawful and unfair
- 2.That the Respondent shall pay the Claimant one month's salary in lieu of notice at USD 4,833.32
- 3.That the Respondent shall pay the Claimant 6 months salary as compensation for the unfair termination at USD 28,999.92
- 4.The Respondent shall also bear the costs of the suit
- Jurisdiction invoked
- Jurisdiction assumed following the Court's ruling of 7th October 2019; dispute governed by Kenyan law including the Employment Act, 2007 and Articles 41, 47 and 50 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Focus Logistics Limited v Otieno (Employment and Labour Relations Appeal E230 of 2024) [2025] KEELRC 1931 (KLR)[2025] KEELRC 1931 (KLR)30 Jun 2025followed
Cite this brief
#Cite this brief
Caselaw, "Kawino v Population Services International (PSI) (Cause 2563 of 2016) [2025] KEELRC 1436 (KLR)", Case Analysis (2025). Not stated in the judgment extract (Employment and Labour Relations Court cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1436/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.