[2021] KEELRC 445 (KLR)
The court found that the claimant had accepted the alteration of his contract term to two years by signing the offer letter dated 9 October 2017. This document, as a primary contractual instrument, superseded earlier or conflicting correspondence. The claimant was therefore aware of the revised tenure and even...
Source-derived case information.
- Citation
- [2021] KEELRC 445 (KLR)
- Parties
- Claimant: Ondieki Gisore Joash; Respondent: County Government of Nyamira; Respondent: Governor, County of Nyamira; Respondent: County Public Service Board, Nyamira
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 16 of 2020
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Legal Topics
- Fixed Term Contracts, Unfair Termination, Alteration of Contract Terms, Burden of Proof, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ondieki Gisore Joash
Claimant
County Government of Nyamira
Respondent
Governor, County of Nyamira
Respondent
County Public Service Board, Nyamira
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the claimant's employment was unfairly terminated before the expiry of his contract.
- 2 Whether the alteration of the contract term to two years was valid and binding on the claimant.
- 3 Whether the claimant is entitled to remedies for alleged unfair termination and breach of contract.
Ratio Decidendi
The court found that the claimant had accepted the alteration of his contract term to two years by signing the offer letter dated 9 October 2017. This document, as a primary contractual instrument, superseded earlier or conflicting correspondence. The claimant was therefore aware of the revised tenure and even sought an extension before the contract's expiry. The court held that the claimant failed to prove unfair termination as required under section 47(5) of the Employment Act, 2007, and did not disclose in his pleadings that he had accepted the contract alteration. Consequently, the claim for unfair termination and breach of contract was not established.
Court Disposition
claim dismissed
Orders
- The cause is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
48 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 16 OF 2020
ONDIEKI GISORE JOASH..............................................................................................CLAIMANT
VERSUS
COUNTY GOVERNMENT OF NYAMIRA.........................................................1st RESPONDENT
GOVERNOR, COUNTY OF NYAMIRA.............................................................2nd RESPONDENT
COUNTY PUBLIC SERVICE BOARD, NYAMIRA..........................................3rd RESPONDENT
JUDGMENT
1. Ondieki Gisore Joash (the Claimant) was offered an appointment as a Political Advisor in the Office of the Governor, Nyamira through a letter dated 30 August 2016 by the County Public Service Board (the Board).
2. The contract was to lapse on 31 August 2017.
3. On 30 August 2017, the Board offered the Claimant another contract which was to lapse on 31 August 2022.
4. However, on 29 August 2019, the Board wrote to the Claimant informing him that his contract would expire on 30 August 2019.
5. On 6 January 2020, the Chief Officer, Public Service Management, wrote to the Chairman of the Board to notify him that the Claimant’s contract was to lapse on 31 August 2022, and therefore the separation was premature.
6. The Chief Officer requested that the Claimant be reinstated to office.
7. The Claimant was not reinstated, and on 14 February 2020, he sued the Respondents alleging unfair termination of employment and breach of contract.
8. The Respondents filed a Response on 30 April 2020, in which it was averred that the letter dated 30 August 2017 was issued in error and the error had been rectified through a letter dated 9 October 2017.
9. The Cause was heard on 15 March 2021. The Claimant and the Chairperson of the Board testified.
10. Pursuant to Court directions, the Claimant filed his submissions on 15 April 2021. The Respondents filed their submissions on 17 May 2021.
11. The Court has considered the pleadings, evidence and submissions.
Unfair termination of employment
12. It is not in dispute that the Board offered the Claimant a contract from 1 September 2017 to 31 August 2022.
13. The Claimant accepted the offer.
14. On 9 October 2017, the Board wrote to the Claimant informing him that the contract was to run for 2 years (alteration of a contract term).
15. The Claimant accepted the alteration of the term by appending his signature to the offer.
16. On 26 August 2019, the Claimant wrote to the Governor, requesting the extension of his contract.
17. The Governor did not respond to the request.
18. Instead, the Board wrote to the Claimant on 29 August 2019, notifying him that the contract would expire the next day.
19. In Court, the Claimant contended that the letter of 9 October 2017 had been overtaken by events as the Board had issued to him a contract dated 30 September 2019, reiterating that the contract was to expire in 2022.
20. The Claimant also relied on a copy of a Memo dated 15 August 2019 from the Chief of Staff to the Governor, attaching a list of contract employees serving in the Governor’s office and letters by the Chief Officer, Public Service Management.
21. The Claimant did not produce in Court the contract dated 30 September 2019.
22. The Respondents urged the Court to dismiss the Claimant’s case because he had come to court with unclean hands by failing to disclose that he had signed the offer letter dated 9 October 2017, altering the term of the contract.
23. The terms of employment can be gathered from the primary contractual documents or secondary documents.
24. In the case at hand, there is a primary document dated 9 October 2017, setting out the tenure of the Claimant’s contract as 2 years. The Claimant appended his signature to the offer letter.
25. In the view of the Court, the letters from the Chief Officer and Chief of Staff (dated 15 August 2017 and 29 August 2017) must yield to the offer alteration letter of 9 October 2017, which the Claimant accepted.
26. The Court takes comfort in that conclusion on the ground that the Claimant was aware of the tenure of the contract, and that is why he sought for extension of the contract through his letter of 26 August 2019.
27. The Court finds that case of the Claimant was not one of unfair termination of employment. He did not prove as much as envisaged under section 47(5) of the Employment Act, 2007. In fact, he failed to disclose in his pleadings that he had appended his signature to an offer letter revising/altering the term of the contract to 2 years.
Conclusion and Orders
28. In consideration of the foregoing, the Court finds no merit in the Cause, and it is dismissed. No order on costs.
29. The Court regrets that the judgment could not be delivered as earlier scheduled due to other official engagements.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 19TH DAY OF NOVEMBER 2021.
RADIDO STEPHEN, MCIARB
JUDGE
APPEARANCES
FOR CLAIMANT MR OBAE INSTRUCTED BY K.O. OBAE & CO. ADVOCATES
FOR RESPONDENTS MR NDEGE INSTRUCTED BY NYACHIRO NYAGAKA & CO. ADVOCATES
COURT ASSISTANT CHRISPO AURA