Back to List

KLR Weekly e-Newsletter
 
Connect With Us:
  Facebook Twitter Youtube Java Home Visit Our Website

Tuesday 29th January

Issue 4/2013

CASE OF THE WEEK

 

Failure To Give Notice Of Termination Connotes Constructive Renewal Of A Contract Of Employment.
By Victor L. Andande and Njeri Githang'a Kamau-Advocate

Ruth Gathoni Ngotho Kariuki v. Presbyterian Church of East Africa & Another.
Cause No. 509 of 2010
Industrial Court of Kenya at Nairobi
Byram Ongaya J.
December 11, 2012.

The Claimant was employed by the Respondents as a nursing officer in charge at the Respondents' Presbyterian Church of East Africa Kikuyu Hospital.  She was employed on 29.03.2004 on a fixed term contract of three years and was subject to renewal. Clause 2 on terms of appointment provided, "The Hospital's Board shall renew your contract and you shall serve the Hospital as Nursing Officer in charge of the Kikuyu Hospital for 3 – year renewable contract commencing April 2, 2007".  Further, clause 6 on renewal of the employment arrangement provided, "Not less than three months before the date of this expiration of this contract, the Hospital Board shall inform the officer as to whether or not it wishes to renew the contract". The Claimant served successfully her initial three years term and the contract of employment was renewed by the letter dated March 7, 2007 with effect from April 1, 2007 for three years.  In January 2009 the Respondents sponsored the Claimant for a training course in Masters of Science in Health Systems Management.  The Hospital Management committee bonded the Claimant with conditions of training as follows:

"(a) The Hospital Sponsorship is given on condition that on completion of the training the participant will work for P.C.E.A Kikuyu Hospital, for a period of 5 (five) years before being released from the bond.

(b) The P.C.E.A Kikuyu Hospital will meet the 50% full tuition and other fees to the college…"

In 2010, the Finance and Administration office was vacant and by the letter dated 5.03.2010, the Hospital Chief Executive Officer addressed the Claimant, thus, "In the absence of the Finance & Administration Manager the following reporting systems will apply until the position is filled …  Nursing Officer in Charge will be responsible for the service departments which include:

1. House Keeping/Cleaning

2. Catering
3. Security
4. Maintenance
5. Funeral Home"

The Claimant testified that she undertook the extra duties as assigned and she was not paid. On 5.05.2010 she was served with the letter of termination dated 5.05.2010 the letter stated as follows:-…This is to confirm to you that the Hospital will not renew your contract which ended on 31st March 2010. Kindly clear with the Hospital Administration and vacate the premises immediately…the claimant hence prayed for judgment against the Respondent jointly and severally for special damages of Kshs.9,940,101.64/=.

Issues:

  1. Whether an employer's failure to give notice of termination as provided for in a contract of employment amounted to constructive renewal of an employment contract.

  2. Whether a bonding contract for training was a contract of service within the meaning of Section 2 of the Employment Act.

  3. Whether an employee is entitled to be paid for services outside the contractual obligation.

  4. Whether the claimant was unlawfully and unfairly terminated from employment.

Employment law-renewal of an employment contract-constructive renewal- effluxion of time not a basis for non-renewal of contract- whether employer's failure to give notice of termination as provided for in the employment contract amounts to constructive renewal of the contract

Employment law
-contract of employment-bonding contract-whether a bonding contract for education loan amounts to a contract of service

Employment law-
contract of service – where an employee performs extra duties not provided for in the contract of service-whether an employee entitled to be paid for services rendered outside the contractual obligation.

Held:

  1. The renewal of the employment contract was to be mandatory, thus, "The Hospital Board shall renew your contract..." was such an imperative provision of the contract that entitled the Claimant to unwavering legitimate expectation to the renewal of her contract of service.  The only intervening contractual provision was that if renewal was to be refused, then the Claimant was to be informed the refusal three months before the expiry of the contract. The Respondents having failed to comply with the three months conveyance of refusal to renew, the three years fixed term contract intended to lapse on 31.03.2010 did not so lapse.

  2. The contract had been constructively renewed for failure to comply with the contractual provision on termination which required a three months' notice. The effluxion of time was not a genuine reason for non renewal. The termination thus proceeded outside the contractual provision and therefore in breach of the contract.

  3. The bonding contract amounted to a contract of service within the definition of Section 2 of the Employment Act 2007. However, the commencement of the contract of employment flowing from the bonding contract was the effective date of completion of the training.

  4. The existence of the three year fixed contract and its renewal was a fundamental implied term that was a foundational precondition for the contract of service flowing from the bonding contract.

  5. The bonding contract being a contract of employment, the respondents breached and unfairly terminated it.

  6. It is an implied and an invariable condition in contracts of service that wherever the employer imposes duties beyond the contractual duties, the employer must pay reasonable wage for such imposed duties. Article 41 of the Constitution entitles every person to fair labour practice and thus it is unfair labour practice for an employer to impose duties beyond the contractual duties and, after the employee has delivered on the duties, the employer alleges that there is no contractual obligation to pay.  

  7. The claimant was unlawfully and unfairly terminated from employment because he was not given a hearing and notification as envisaged under Section 41 of the Employment Act 2007.

Judgment entered for the claimant in the sum of Ksh.5,141,148.34/=

 

 

SELECTED NOTICES FROM THE KENYA GAZETTE

 

Kenya Gazette Vol CXV – No 10 Dated January 25,2013

The Universities Act - Appointments.
The State Corporations Act - Appointments.
The Finance Act - Appointment.
The Merchant Shipping Act - Commencement.
The National Transport and Safety Authority Act - Appointments.
Ministry of Transport - Appointment of Taskforce.
The Water Act – Determination of Lake Naivasha Water Reserve.
The Land Acquisition Act - Addendum.
The Criminal Procedure Act - Appointment.
The Central Bank of Kenya Act - Revocation of Forex Bureau Licence.
The Registration of Titles Act - Issue of Provisional Certificates, etc.
The Registered Land Act - Issue of New Land Title Deeds, etc.
Customs Services Department - Goods to be Sold at Customs Warehouse, Loitokitok.
The Customs and Excise Act - Approved Manufacturers and Producers.
Probate and Administration.
The Ethics and Anti-Corruption Commission - Quarterly Report.
The Water Act - Regular Tariff Adjustments.
The Records Disposal (Courts) Rules - Intended Destruction of Court Records.
The Co-operative Societies Act - Appointment of Liquidator.
The Companies Act - Winding-up.
The Physical Planning Act - Completion of Part Development Plans.
The Environmental Management and Co-ordination Act - Environmental Impact Assessment Study Reports.
Business Transfer.
Disposal of Uncollected Goods.
Loss of Policies.
Change of Names.

GAZETTE NOTICE NO. 797
THE UNIVERSITIES ACT
(No. 42 of 2012)
KENYATTA UNIVERSITY
APPOINTMENT

IN EXERCISE of the powers conferred by section 36 (1) (a) and (d) of the Universities Act, 2012, the Minister for Higher Education, Science and Technology appoints -

Reuben Indiasi Nasibi (Dr.) - (Chairman),
David Ngugi (Prof.),
Violet Chesang (Dr.),
Aggrey Ole Murunga,
Beatrice Musila,
Flora Nkaduda,

to be members of Kenyatta University Council, for a period of four (4) years, with effect from the 22nd January, 2013.

Dated the 17th January, 2013.

MARGARET KAMAR,
Minister for Higher Education, Science and Technology

GAZETTE NOTICE NO. 798
THE UNIVERSITIES ACT
(No. 42 of 2012)
JOMO KENYATTA UNIVERSITY OF AGRICULTURE AND
TECHNOLOGY
APPOINTMENT

IN EXERCISE of the powers conferred by section 36 (1) (a) and (d) of the Universities Act, 2012, the Minister for Higher Education, Science and Technology appoints -

Ekuru Aukot (Dr.) - (Chairman),
Bertha Joseph Dena,
Amb. Stephen Arphaxard Loyatum,
Rose Muraguri Mwololo (Dr.),
John K. Tanui,
Khadija Sood Shirkely (Dr.),

to be members of Jomo Kenyatta University of Agriculture and Technology Council, for a period of four (4) years, with effect from the 22nd January, 2013.

Dated the 17th January, 2013.

MARGARET KAMAR,
Minister for Higher Education, Science and Technology.

GAZETTE NOTICE NO. 799
THE UNIVERSITIES ACT
(No. 42 of 2012)
TAITA TAVETA UNIVERSITY COLLEGE
APPOINTMENT

IN EXERCISE of the powers conferred by section 36 (1) of the Universities Act, 2012, the Minister for Higher Education, Science and Technology appoints -

LUCIA OMONDI (PROF.)

to be Chairperson of Taita Taveta University College Council, for a period of four (4) years, with effect from the 22nd January, 2013. The appointment of Florence Nyamu (Dr.), as Chairperson of Taita Taveta University College Council, is revoked.

Dated the 17th January, 2013.

MARGARET KAMAR,
Minister for Higher Education, Science and Technology.

GAZETTE NOTICE NO. 800
THE STATE CORPORATIONS ACT
(Cap. 446)
THE KENYA SEED COMPANY
APPOINTMENT

IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the Minister for Agriculture appoints -

The Managing Director, Agricultural Development Corporation, The Managing Director, Kenya Farmers' Association, to be members of the Board of Kenya Seed Company, for a period of three (3) years, with effect from the 17th  December, 2012.

Dated the 14th January, 2013.

S. J. KOSGEI,
Minister for Agriculture.

GAZETTE NOTICE NO. 801
THE STATE CORPORATIONS ACT
(Cap. 446)
NZOIA SUGAR COMPANY
APPOINTMENT

IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the Minister for Agriculture appoints -

ROSELINDER SIMIYU

to be a member of the Board of Nzoia Sugar Company, for a period of three (3) years, with effect from the 2nd February, 2013.

Dated the 16th January, 2013.

S. J. KOSGEI,
Minister for Agriculture.

GAZETTE NOTICE NO. 802
THE STATE CORPORATIONS ACT
(Cap. 446)
KENYA PLANT HEALTH INSPECTORATE SERVICE
APPOINTMENT

IN EXERCISE of the powers conferred by section 6 (1) (e) of the State Corporations Act, the Minister for Agriculture appoints -

REUBEN KIPKEMOI YEGON

to be a member of the Board of the Kenya Plant Health Inspectorate Service, for a period of three (3) years, with effect from the 18th January, 2013.

Dated the 16th January, 2013.

S. J. KOSGEI,
Minister for Agriculture.

GAZETTE NOTICE NO. 803
THE FINANCE ACT
(No. 6 of 2005)
THE COFFEE DEVELOPMENT FUND
APPOINTMENT

IN EXERCISE of the powers conferred by section 34B of the Finance Act, 2005, the Minister for Agriculture appoints -

LEE W. WARUINGI

to be the Chairman of the Board of Coffee Development Fund, for a period of three (3) years, with effect from the 18th January, 2013.

Dated the 16th January, 2013.

S. J. KOSGEI,
Minister for Agriculture.

GAZETTE NOTICE NO. 804
THE MERCHANT SHIPPING ACT
(No. 4 of 2009)
THE MERCHANT SHIPPING (SMALL VESSEL SAFETY)
REGULATIONS, 2012
(L.N. 114 of 2012)
COMMENCEMENT

IN EXERCISE of the powers conferred by regulation 1 of the Merchant Shipping (Small Vessel Safety) Regulations, 2012, the Minister for Transport appoints the 28th January, 2013, as the day on which the Regulations shall come into operation.

Dated the 22nd January, 2013.

AMOS KIMUNYA,
Minister for Transport.

GAZETTE NOTICE NO. 805
THE MERCHANT SHIPPING ACT
(No. 4 of 2009)
THE MERCHANT SHIPPING (PORT STATE CONTROL)
REGULATION, 2011
(L.N. 191 of 2011)
COMMENCEMENT

IN EXERCISE of the powers conferred by regulation 1 of the Merchant Shipping (Port State Control) Regulations, 2011, the Minister for Transport appoints the 15th  January, 2013, as the day on which the Regulations shall come into operation.

Dated the 14th January, 2013.

AMOS KIMUNYA,
Minister for Transport.

GAZETTE NOTICE NO. 806
THE NATIONAL TRANSPORT AND SAFETY AUTHORITY ACT
(No. 33 of 2012)
APPOINTMENT

IN EXERCISE of the powers conferred by section 6 (1) (f) and (g) of the National Transport and Safety Authority Act, 2012, the Minister for Transport appoints -

Charles Kanjama,
Nasra Sheikh Ahmed,
Bright Oywaya,
Alister Murimi Mutugi,
Edwins Mukabanah,
Rita Kavishe,

to be members of the Board of the National Transport and Safety Authority, for a period of three (3) years, with effect from 28th January, 2013.

Dated the 22nd January, 2013.

AMOS KIMUNYA,
Minister for Transport.

GAZETTE NOTICE NO. 807
THE NATIONAL TRANSPORT AND SAFETY AUTHORITY ACT
(No. 33 of 2012)
APPOINTMENT

IN EXERCISE of the powers conferred by section 39 (2) as read with section 57 (1) of the National Transport and Safety Authority Act, 2012, the Minister for Transport appoints -

George Kibira Karwenji - (Chairman),
Granton Julius Mwakera,
Francis Mbaluto Mangeli,
Rajab Sumba,
Abdullahi Issak Bule,

as members of the Transport Licensing Appeal Board, for a period of three (3) years, with effect from the 22nd January, 2013.

Dated the 22nd January, 2013.

AMOS KIMUNYA,
Minister for Transport.

GAZETTE NOTICE NO. 808
MINISTRY OF TRANSPORT
APPOINTMENT OF TASKFORCE ON DELINKING AND
OPERATIONALIZATION OF THE NATIONAL TRANSPORT
AND SAFETY AUTHORITY

THE Minister for Transport constitutes a Taskforce for Delinking and Operationalization of the National Transport and Safety Authority.

The appointed members of the Taskforce are -
Isaac Kamau - (Chairman).
Members:
Francis Meja.
Abdi Mohammed.
Martin Eshiwani.
Cosmas Ngeso.
Silas Gitari.
Robert Ngugi.
Maina Weru.
Susan Karanja.
Philip Maina Nyingi.
Eric Karaithe.
Charles Gachahi.

The terms of reference of the Taskforce will be to develop:
(a) Guidelines on delinking Strategy.
(b) Structure of the Authority.
(c) Establishment of staffing needs for the Authority.
(d) Guidelines on secondment of staff.
(e) Grading of the Authority.
(f) Sharing of assets and liabilities.
(g) A draft budget; and
(h) Regulation for operationalization of the Traffic Act (Revised 2012).
The Taskforce will start its work with effect from 21st January,2013 and submit a report within forty-five (45) days.

Dated the 22nd January, 2013.

AMOS KIMUNYA,
Minister for Transport.

GAZETTE NOTICE NO. 810
THE LAND ACQUISITION ACT
(Cap. 295)
NORTHERN CORRIDOR TRANSPORT IMPROVEMENT PROJECT (NCTIP)
REHABILATION OF MAU SUMMIT – KERICHO – KISUMU (A1/B1) ROAD
INTENTION TO ACQUIRE LAND
Addendum
IN Gazette Notice Nos. 8753, 8754 of 23rd July, 2010 add to the schedule the following properties

Plot No.

Registered Owner

Area (Ha)

Kericho/Chepsir/47

Solomon Kipkoske A. Yosei

0.122

Kericho/Chepsir/49

Benjamin Kiprono Soi

0.57

Kericho/Chepsir/123

Kiperenge Kiptonui A. Mogon

0.08

Kericho/Chepsir/124

Joseph Kiplangat Kurgat

0.0124

Kericho/Chepsir/125

Richard Kibet Ng'eno

0.006

Kericho/Chepsir/136

Raphael Kipngetich A. Kilel

0.05

Kericho/Kipkelion/Chepseon/Block 4(Chepseon)287

Ezekiel Kipsigei Chelule

0.015

Kericho/Kipkelion/Chepseon/Block 4(Chepseon)859

John Kipkirui Arap Maritim

0.0351

Kericho/Simbi/164

Chepkwony Arap Langat

0.015

Kericho/Simbi/165

Rarandich w/o Arap Sang

0.006

Kericho/Simbi/66

Kibii Arap Bet

0.104

Kisumu Municipality/Block 9/330

Praful B. Panchmatia and Nirupuma P. Panchmatia

0.04

Kisumu Municipality/Block 9/331

Praful B. Panchmatia and Nirupuma P. Panchmatia

0.1563

Kisumu Municipality/Block 9/332

Praful B. Panchmatia and Nirupuma P. Panchmatia

0.11174

Kisumu Municipality/Block 9/333

Praful B. Panchmatia and Nirupuma P. Panchmatia

0.2143

Plans of the affected land may be inspected during office hours at the office of the Commissioner of Lands, 1st Ngong Avenue or at Lands office, Kisumu.

Dated the 16th April, 2012.

Z. A MABEA,
Commissioner of Lands.

GAZETTE NOTICE NO. 811
THE LAND ACQUISITION ACT
(Cap. 295)
NORTHERN CORRIDOR TRANSPORT IMPROVEMENT PROJECT (NCTIP)
REHABILATION OF MAU SUMMIT–KERICHO–KISUMU (A1/B1) ROAD
INQUIRY
Addendum
IN PURSUANCE of section 9(1) of the land Acquisition Act, the Commissioner of Lands gives notice of inquiry for the hearing of claims to compensation by people interested in the land required for construction of the above road shall be held as shown on the schedule here below.

On Tuesday, 7th May, 2013 at DO's office, Chepseon

Plot No.

Registered Owner

Area (Ha)

Kericho/Chepsir/47

Solomon Kipkoske A. Yosei

0.122

Kericho/Chepsir/49

Benjamin Kiprono Soi

0.57

Kericho/Chepsir/123

Kiperenge Kiptonui A. Mogon

0.08

Kericho/Chepsir/124

Joseph Kiplangat Kurgat

0.0124

Kericho/Chepsir/125

Richard Kibet Ng'eno

0.006

Kericho/Chepsir/136

Raphael Kipngetich A. Kilel

0.05

Kericho/Kipkelion/Chepseon/Block 4(Chepseon)287

Ezekiel Kipsigei Chelule

0.015

Kericho/Kipkelion/Chepseon/Block 4(Chepseon)859

John Kipkirui Arap Maritim

0.0351

On Wednesday, 8th May, 2013 at DO's office, Soin


Kericho/Simbi/164

Chepkwony Arap Langat

0.015

Kericho/Simbi/165

Rarandich w/o Arap Sang

0.006

Kericho/Simbi/66

Kibii Arap Bet

0.104

On Wednesday, 9th May, 2013 at DO's office, Winam


Kisumu Municipality/Block 9/330

Praful B. Panchmatia and Nirupuma P. Panchmatia

0.04

Kisumu Municipality/Block 9/331

Praful B. Panchmatia and Nirupuma P. Panchmatia

0.1563

Kisumu Municipality/Block 9/332

Praful B. Panchmatia and Nirupuma P. Panchmatia

0.11174

Kisumu Municipality/Block 9/333

Praful B. Panchmatia and Nirupuma P. Panchmatia

0.2143

Every person who is interested in the above land is required to deliver to the Commissioner of Lands not later than the day of inquiry a written claim to compensation. Interested persons should also appear for inquiries with copies of the following documents: - ID, copy of title deed, PIN No. to confirm ownership.

Dated the 16th April, 2012.

Z. A MABEA,
Commissioner of Lands.


GAZETTE NOTICE NO. 812
THE CRIMINAL PROCEDURE ACT
(Cap. 75)
APPOINTMENT

IN EXERCISE of the powers conferred by section 85 (1) of the Criminal Procedure Act, the Director of Public Prosecutions appoints -

DONALD B. KIPKORIR

an advocate of the High Court of Kenya, to be a Public Prosecutor for purposes of the cases mentioned below and all related proceedings in the High Court and Court of Appeal, where they arise.

Nairobi Criminal Case No. 1455 of 2012 (Kibera)
Republic versus Stephen N. Mose

And

Nairobi Criminal Case No. 1987 of 2012 (Kibera)
Republic versus Simon Ndege and another

Dated the 18th January, 2013.

KERIAKO TOBIKO,
Director of Public Prosecutions.

GAZETTE NOTICE NO. 813
THE CENTRAL BANK OF KENYA ACT
(Cap. 491)
REVOCATION OF FOREX BUREAU LICENCE

IT IS notified for the information of the general public that the Central Bank of Kenya has revoked the licence of the Forex Bureau set out in the First Column of the schedule hereto with effect from the date specified in the second column of the schedule.

SCHEDULE
First Column                                                               Second Column
Speed Excange Forex Bureau Limited          1st January, 2013

Dated the 18th January, 2013.

NJUGUNA NDUNG'U,
Governor, Central Bank of Kenya.

GAZETTE NOTICE NO. 771
THE ENVIRONMENTAL MANAGEMENT AND
CO-ORDINATION ACT
(No. 8 of 1999)
THE NATIONAL ENVIRONMENT MANAGEMENT
AUTHORITY
ENVIRONMENTAL IMPACT ASSESSMENT STUDY REPORT
FOR THE PROPOSED GALANA OIL PETROL STATION, ON
PLOT L.R. NO. EMBU MUNICIPALITY/1556, EMBU WEST
DISTRICT, EMBU COUNTY
INVITATION OF PUBLIC COMMENTS

PURSUANT to regulation 21 of Environmental (Impact Assessment and Audit) Regulations, the National Environmental Management Authority (NEMA) has received an Environmental Impact Assessment Study Report for the implementation of the proposed Galana oil petrol station, on plot L.R. No. Embu
Municipality/1556, Embu west district, Embu County.

The Proponent (Galana Oil Limited) of the proposed project is proposing to construct and operate a fuel service station and stock petroleum products and related services which will include petrol, diesel, kerosene, motor oils, service bay, tyres and tubes, compressed air, water, shop and restaurant.

The anticipated impacts and proposed mitigation measures are set out in the gazette.

The full report of the proposed project is available for inspection during working hours at:

(a) Director-General, NEMA, Popo Road, off Mombasa Road, P.O. Box 67839–00200, Nairobi.
(b) Permanent Secretary, Ministry of Environment and Mineral Resources, NHIF Building, Community, P.O. Box 30521,Nairobi.
(c) County Director of Environment, Embu County.

The National Environment Management Authority invites members of the public to submit oral or written comments within thirty (30) days from the date of publication of this notice to the Director-General, NEMA, to assist the Authority in the decision making process of the plan.

B. M. LANGWEN,
for Director-General,
National Environment Management Authority.
MR/1485375

National Council for Law Reporting
Milimani Commercial Courts Building,
Ground Floor
P.O Box 10443 - 00100, Nairobi Kenya.
Tel: (254 020) 2712767, 2719231
Fax: (254 020) 2712694

Back to List