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RLB 304

RIARA LAW SCHOOL

UNIVERSITY OF EXAMINATION FOR BACHELOR OF LAWS (LLB) DEGREE
AND
PRE-KENYA SCHOOL OF LAW CORE COURSES COMPLIANCE PROGRAM
AUGUST 2022
RLB 304: LABOUR LAW
INSTRUCTOR: MR. WASHINGTON ODONGO OMBIS
INSTRUCTIONS

1. This is the final examination in Labour Law. You will earn 70% of your final
grade from this final examination and 30% from Continuous Assessment
Assignments.
2. This examination has FIVE questions. QUESTIONS 1, 2 & 3 ARE
COMPULSORY.
3. Answer FOUR (4) questions in TOTAL.
4. The examination has 3 pages, including this one.
5. Time allocated for this examination is TWO HRS (2) hours. You must stop
writing when time is called.
6. Please sign the roll sheet when you turn in you answer sheet. If you fail to
sign the roll sheet, we shall have no way of establishing that you sat for this
examination and your marks will not be reported.
7. This is a CLOSED BOOK examination. This means you are not permitted to
bring ANY hard or soft materials to the examination room.  You re also not
allowed to access materials stored in computers, electronic gadgets or the
internet.  You should not bring to the examination room any of the
following: cell phones, tablets, computers, statutes, notes, outlines, or
books.  Neither should you bring to the examination room books or
materials unrelated to this course.  If you need to have medicine or food
items with you, please let the invigilator know before the examination
begins.
8. This examination is governed by Riara University Academic Honesty
Regulations. Students who violate those regulations will be penalized.
Students have an obligation to report to the invigilator any incidences of
academic dishonesty compromising the integrity of this examination.

 
Question One (30 Marks)
On the 5th day of March 2022, one Brigidis was employed to act as the Senior Legal
Counsel by Kenya Power & Lighting Company her responsibilities included:

 Preparing draft amendments of legislations which have an impact on the

company;

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 Participating in stakeholder engagements in which legislations affecting the
company are discussed;
 Preparing draft reports to the company’s management committee;
 Drafting legal opinions;
 Providing legal advice on contracts which affect the company;
 Conducting conveyancing between the company and other;
 Representing the company in courts both superior and subordinate courts,
tribunals;
 Conducting pre-trial briefings;
 Overseeing work of the support staff including: legal assistants, legal clerks,
and legal secretaries.

Brigidis was employed through contract of employment dated 5th day of March 2022
which contract was supposed to run for a period of 5 years and the same was
witnessed by: -

 Linda Ragonga - Head of Human Resource.

 Sheikh Zubeir - Legal Counsel.

Under the contract of employment, Brigidis was entitled to:

 Net salary 200,000/=

 House allowance 60,000=
 Commuter allowance 50,000/=
 Entertainment allowance 30,000/=

 On the 5th day of June 2022, Brigidis received email from Head of Company
informing her that she had been terminated for reasons unknown to her.
She decided to inform the firm of Tarence & Co LLP situated in Yaya Center, 5 th Floor
Room 500 for them to intervene and assist her in her plight.
Draft the relevant pleadings to institute in order for Brigidis to obtain the appropriate
redress.

REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MILIANI

CLAIM NO 7 OF 2022

BRIGIDIS .........................................................................................................CLAIMANT

VERSUS

KENYA POWER & LIGHTING COMPANY ..........................................................RESPONDENT

STATEMENT OF CLAIM

Description of parties

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1. The Claimant is a female adult of sound mind and knowledge, residing and working
for gain within the republic of Kenya. (Cla Building, YAYA CENTER, 5TH FLOOR,
Room 500, P.O.Box 8765 Nairobi, Kenya , shall be in the care of Tarence & Co LLP)
2. The Respondent is a law firm operating within CBD under business registration
number BRE 7642. (Service of summons shall be effected through the claimants
advocates and offices.)
th
3. Brigidis was employed through a written contract executed on the 5 of March
2022. The contact was valid for 5 years.
4. In her contract some the responsibilities apportioned to Brigidis are as follows:

- Preparing draft amendments of legislations which have an impact on the company

- Representing the company in courts both superior and subordinate courts,
tribunals

5. The contract was witnessed by the Head of Human Resources Linda Ragonga and
the KPLC’S Legal Counsel Sheikh Zubeir
6. The terms of the contract were that Brigidis receive the following as compensation
for the execution of duties:

Net Salary: Kshs.200,000/=

House Allowance Kshs.60,000/=

Commute Allowance: Kshs.50,000/=

Entertainment Allowance: Kshs.30,000/=

nd
7. On the 5 of June 2025 Brigidis received an email from the Head of Kenya Power
and Lighting Company informing her that her contract had been terminated for
unknown reasons.
8. Brigidis feels she was wrongfully terminated. This is because she had only been
working for KPLC for two months after she had executed her contract. Her
probationary period was six months, therefore KPLC did not even allow the normal
time to execute her contract to the best of her ability.

REASONS WHEREFORE THE CLAIMANT PRAYS FOR:

1. Certificate of service to be issued under section 51 of the Employment Act

2. Declaration that the termination was illegal under art 41 of the Constitution of
Kenya 2010
3. To be reinstated
4. Claim for terminal dues computed as follows
o ●  (200,000 x12) x 5 = 12,000,000
o ●  (60,000 x12) x 5 = 3,600,000
o ●  (50,000 x12) x 5= 3,000,000
o ●  (30,000 x12) x 5= 1,800,000

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5. Costs of suit to the Claimant

ND
DATED AT NAIROBI THIS 22 DAY OF AUGUST OF 2022

DRAWN AND FILED BY

TARENCE & CO LLP CLA BUILDING

YAYA CENTER, 5TH FLOOR,ROOM 500

P.O.BOX 8765
NAIROBI, KENYA

INFO@TARENCEANDCOLLP.AC.KE

+25470987978

TO BE SERVED UPON

KENYA POWER AND LIGHTING COMPANY STIMA PLAZA, PARKLANDS

P.O.BOX 8778
NAIROBI, KENYA

INFO@KPLCLEGAL.GOV.KE

+2547110310000

REPUBLIC OF KENYA

IN THE CHIEF MAGISTRATE EMPLOYMENT AND LABOUR RELATIONS COURT AT MILIANI

CLAIM NO 7 OF 2022

BRIGIDIS..........................................................................................................CLAIMANT

VERSUS

KENYA POWER & LIGHTING COMPANY...........................................................RESPONDENT

VERIFYING AFFIDAVIT

I Brigids of P.O.BOX 1-001000 NAIROBI, KENYA and of I.D No 7838393000000 do solemnly

state as follows;

1. THAT, I am the claimant therein;

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2. THAT, I confirm the statements made in the claim are correct;

3. THAT , what is stated here to is true to the best of knowledge; and belief;
ST
DATED AT NAIROBI THIS 22 DAY OF AUGUST OF 2022

SWORN AT NAIROBI } }
ST
} THIS 22 DAY OF AUGUST OF 2022 }

BEFORE ME (COMMISIONAL STAMP)

COMMISONER OF OATHS

(signature) KURJI & CO Advocates –claimants advocates

( signature) DEPOMENT

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE EMPLOYMENT AND LABOUR RELATIONS COURT AT MILIMANI
CLAIM NO 7 OF 2022

BRIGIDIS..........................................................................................................CLAIMANT

VERSUS

KENYA POWER & LIGHTING COMPANY...........................................................RESPONDENT

CLAIMANTS LIST OF WITNESSES

1. Head of Human Resources Linda Ragonga

2. KPLC’S Legal Counsel Sheikh Zubeir

3. BRIGIDS

4. KPLC Head of Company

5. Any other witness with the leave of court

I Brigids of P.O.BOX 1-001000 NAIROBI, KENYA and of I.D No 7838393000000 do solemnly

state as follows;

1. THAT, I am the claimant therein;

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st
2. THAT, I was employed by the Respondent on 5 March 2022;

3. THAT , I was employed as an Senior Legal Counsel ;

4. THAT, I was entitled to basic salary, house allowance, entertainment allowance;

5. THAT, I was under contract that was witnessed by Linda Rangongo and Sheikh
Zubeir;

6. THAT, I was unfairly terminated by the Respondent

7. THAT, I am entitled to

 ●  Certificate of service to be issued under section 51 of the Employment Act

 ●  Declaration that the termination was illegal under art 41 of the Constitution of
Kenya 2010

 ●  To be reinstated

 ●  Claim for terminal dues computed as follows

● (200,000 x12) x 5 = 12,000,000 ● (60,000 x12) x 5= 3,600,000 ● (50,000 x12) x 5 =

3,000,000 ●  (30,000 x12) x 5= 1,800,000

8. This is all I wish to state.

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE EMPLOYMENT AND LABOUR RELATIONS COURT AT
MILIMANI CLAIM NO 7 OF 2022

BRIGIDIS...........................................................................................................CLAIMANT

VERSUS

KENYA POWER & LIGHTING COMPANY...........................................................RESPONDENT

WITNESS STATEMENT OF THE CLAIMANT

I AJUMBO of P.O.BOX 1-001800 NAIROBI, KENYA and of I.D No 7838393000000 do solemnly

state as follows;

1. THAT, I am the witness of the claimant therein;

st
2. THAT, I know the claimant was employed by the Respondent on 5 March 2022;

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3. THAT, I know the claimant was employed as a Senior Legal Counsel;

4. THAT, the claimant was entitled to basic salary, house allowance and entertainment
allowance;

5. THAT, I executed the contract that and it was witnessed by Head of Human
Resources Linda Ragonga and KPLC’S Legal Counsel Sheikh Zubeir

6. THAT, the claimant was unfairly terminated by the Respondent;

(signature) BRIGIDS

REPUBLIC OF KENYA
IN THE CHIEF MAGISTRATE EMPLOYMENT AND LABOUR RELATIONS COURT AT
MILIMANI CLAIM NO 7 OF 2022

BRIGIDIS...........................................................................................................CLAIMANT

VERSUS

KENYA POWER & LIGHTING COMPANY...........................................................RESPONDENT

1. CLAIMANTS LIST OF DOCUMENTS

1. Copy of employment contract

2. Payslips

3. Any other document with leave of court

4. Email from the Head of Company for KPLC

ND
DATED AT NAIROBI THIS 22 DAY OF AUGUST OF 2022

DRAWN AND FILED BY

TARENCE & CO LLP CLA BUILDING

YAYA CENTER, 5TH FLOOR,ROOM 500

P.O.BOX 8765
NAIROBI, KENYA

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INFO@TARENCEANDCOLLP.AC.KE

+25470987978

TO BE SERVED UPON

KENYA POWER AND LIGHTING COMPANY STIMA PLAZA, PARKLANDS

P.O.BOX 8778
NAIROBI, KENYA

INFO@KPLCLEGAL.GOV.KE

+2547110310000

Question Two (15 Marks)

On the 9th day of July 2022, one Jeff Nderi was employed on a legal capacity as the
Company Secretary of Muli Waters Company. (a private limited company).
The CEO of the company one Mrs. Patricia Muli discovered that the company lacks
contracts for its employees
She delivered instructions to Jeff to design contracts of employment which would
prevent the firm from excessive litigation.
Assuming the role of Jeff, draft a suitable employment contract for Muli Waters
Company.                                                                                                                      

DATED THIS 9TH DAY OF JULY 2022 EXAMPLE OF

DRAFT EMPLOYMENT CONTRACT BETWEEN JEFF
NDERI (HEREINAFTER REFERRED TO AS
EMPLOYEE)
AND
MULI WATERS COMPANY (HEREINAFTER
REFERRED TO AS EMPLOYER)
Drawn by
Jeff Nderi Advocate
Britam Tower, 4th Floor, Room 770
Jeffnderiadvocate@yahoomail.com

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Drawn by
Jeff Nderi Advocate
This employment contract made on this 9th day of July 2022 between Jeff Nderi holder of ID card
number 1000 and of P.O Box Number 1-00100G PO Nairobi, ‘hereinafter the employee of one part
and:
Muli Waters Company a private limited company specializing in water distribution solutions
operating under the Business name BM-67001, located at Britam Tower, 4th Floor, Room 770,
Nairobi Kenya hereinafter referred to as the “employer” of the other party.

WHEREAS both the employer and the employee have agreed on the terms as set out under this
contract

2. DEFINITION OF TERMS

In this contract unless the context otherwise requires:

1. “Advocate” means Advocate of the High Court of Kenya

2. “Contract” means contract between Jeff Ndiri and Muli Waters Company

3. “Employee” means Jeff Ndiri

4. “Employer” means Muli Waters Company

5. “Kshs” means local currency of the Republic of Kenya

6. Litigation” means Process of Taking Legal Action

7. “Managing partner” means (S.C) Faith Mulee

8. “Parties” means both employer and employee

3. Commencement date

This contract shall commence on the date executed by both parties

4. Duration

This contract shall subsist for 4 years upon the date of execution by both parties

5. Role & Responsibilities of Employee

The employee shall

1. Draft commercial contracts

2. Attend to commercial litigation disputes

3. Draft joint tenure agreements

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4. Keep up to date on Infrastructure contracts and litigation regarding water use

5. Draft Contracts between the Muli Waters Company and Contractors

6. Operating Hours

The reporting hours for the employee is as follows

1. Monday 8am- 5pm

2. Tuesday 8am- 5pm

3. Wednesday 8am- 3pm

4. Thursday 8am- 4pm

5. Friday 9am- 2pm

6. Saturday 8am – 1pm

7. Termination

This contract shall be terminated without notice by employer if the employee:

1. Gross misconduct of harassment

2. Ascending duty for 2 consecutive months without notice

3. If intoxicated will be summarily dismissed according to the provision in the Employment Act
2007

8. Leave

The employee shall be entitled to the following leave as per the Employment Act of Kenya 2007

1. Sick leave

2. Maternity leave

9. Governing Law

This contract shall be governed in accordance with the laws of the Republic of Kenya

10. Dispute Resolution

In the event of dispute between parties to this contract, the same to be referred to the mediation and in
the event mediation fails the same to be referred to arbitration. Once a matter is settled through
Mediation or Arbitration this will be binding on both parties and one party cannot seek additional
legal redress from the Courts. All matters relating to employment must go through Mediation and
Arbitration before going to be litigated. Matters which are litigated FIRST by an employee will be
regarded as having UNDERMINED this contract.

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SCHEDULE 1 (SALARY & BENEFITS)

a. Basic salary – Ksh.150,000

b. House allowance – Ksh.70, 000
c. Commuters allowance – Ksh.40,000

D. Entertainment allowance – Ksh.55,000

SCHEDULE 2

Designation: Associate Infrastructure Advocate

Immediate Supervisor: Patrica Akia head of commercial department of Muli Waters Company
Final Supervisor: Anisa Ali

11. Execution

The Employee and Employer having understood the terms of the contract execute as follow:-

9/07/2022

Photo Image

Jeff Ndiri Employee

In the presence of (Zanir Kurji)

(Mercy Masika)

Signature

Signature of Witness 1 Signature of Witness 1

Photo Image

Patrica Muli

Signature

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Employer

In the presence of
(Patrica Aika) Signature of Witness 1

(Anisa Ali) Signature of Witness 1

Question Three (15 Marks)

In the case of Loice Otieno v Kenya Commercial Bank[1] the court at paragraph 17
appreciated as follows :
            “[A]s I have had occasion to state in several decisions of the past, The Employment
Act 2007 has caused a radical and fundamental shift in both the jurisprudence and
practice in employment law on Kenya. The doctrine of natural justice or procedural
fairness is now an essential part of the employment relationship.

1. Critically analyse the issue of procedural and substantive fairness in

termination of employment using critical illustrative examples. (10 Marks)

Since the adoption of the Constitution of Kenya 2010 and the Employment Act 2007,
procedural and substantive fairness have become key in the determining if an employee
was fairly dismissed. I shall illustrate procedural and substantive fairness in relation to
termination on the grounds of Redundancy and Incompatibility using caselaw.

Redundancy
The meaning of redundancy can be found in section 2 both the Employment Act
2007 and the Labour Relations Act 2007 which state “ the loss of employment,
occupation, job or career by involuntary means through no fault of the employee,
involving termination of employment at the initiative of the employer, where the
services of an employee are superfluous and practices commonly known as
abolition of office, job or occupation and loss of employment”. According to the
English case of Chapman v Goonvean & Rostowark China Limited [1973] 2 All ER,
Lord Denning held that it is not a genuine redundancy where the requirements of the
business for the affected employees continues as it did before. This displays how a
redundancy must affect all part of the business as displayed and must phase out the
requirement of a certain job. An example of this is how robotics is phasing out the
need for labours in car construction. Additionally, the British House of Lords stated in
Polkey v A.E Dayton Services Limited 1988 ICR 142 [HL] that there is duty on
employees to act reasonable in all termination decisions, this principle has been
enshrined in Section 40 of the Employment Act 2007 where an outline of the

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conditions an employer must consider before making a worker redundant. In Jane I
Khalechi v Oxford University Press EA Limited [2013] eKLR the court held that these
principles were not followed and therefore the court ruled in favour of the claimant. This
displays how important it is for the considerations outlined in section 40 of the Employment
Act 2007 must be taken by Employers. Furthermore additional standards have also been
added before a redundancy can take place, such as notice, consultation, objective criteria
and the recognition of statuary and constitutional rights as was held in the in the landmark
case of Kenya Airways Limited v Aviation & Allied Warkers Union Kenya & 3 others [2014]
eKLR.

Incompatibility
One of the grounds for termination according to section 45(b)(2) of the Employment
Act 2007 one of the grounds for termination is incompatibility. In the leading case of
Dede Esi Annie Amanor Wikis v Action Aid International [2014] eKLR it was held that
an employer has the right to terminate an employee who fails to fit into the corporate
culture. However it is important to note that according to the court incompatibility is
not be interpreted from every compliant an employee makes but rather,
incompatibility stems from persistent and irrational inability of an employee to work
with her workmates. In the case of Eunice Adhiambo v Pharmakem Limited [2016] eKLR
one of the reasons given for termination in the Claimant’s letter was lack of
compatibility with Colleagues and Company Auditors. As displayed in the Claimant’s
submissions there was a general feeling that the Claimant was unwanted resulting in
mutually uncivil language. However, upon further investigation the court found that
the incompatibility only appeared prominent with the rest of her Financial Controller
as she had worked well with her colleagues since 2009. Therefore, as the
compatibility was only limited to the financial controller it did not meet the tests for
the employee’s persistent and irrational ability to work with her workmates. The court
therefore found that the reasons given for her termination were not fair and valid and
awarded her six months’ salary as compensation.

2. Discuss the principles and procedures applicable on termination of

employment on poor performance. (5 Marks)

Poor Performance

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The standard for how Performance is measured was set in the case of Maina Mwangi v
Thika Coffee Mills Limited [2012] eKLR. In it the learned Judge stated that “Performance
Standards and elements must be reasonable, understandable, verifiable, measurable,
equitable and achievable”. Once this is made clear to the employee and if the employee fails
to meet the standards set then the first course of action by the Employer is to notify the
employee that he/she has failed to meet the standards. After this the employer should then
consider if the employee is better suited to another task within the organisation, only after
these steps have been carried out can the employer make use of the dismissal on the
grounds of performance set in section 41 of the Employment Act 2007. In the Maina
Mwangi v Thika Coffee Mills Limited [2012] eKLR the Court ruled in favour of Mr Mwangi as
it was unclear if the Respondent had a clear performance management policy in place.
Additionally, blame was not placed directly at the claimant so that they could change their
behaviour. If these mechanisms were in place, then the court may have come in favour of
the employee as the court alluded to in the case in stating “the facts may have crystallized if
the Respondent had adhered to a fair disciplinary procedure and heard the Claimant, before
making the decision to terminate”. This displays how like the other grounds for termination,
before terminating an employee on grounds of performance a rigorous process has to be
followed by the employee, they can terminate their employee. Additionally, even when
there Performance Improvement Plan the employee is under a high burden of proof to
display that they had a mechanism by which to measure the employee’s performance
according to section 8 of the Employment Act 2007. This principle of a high burden of proof
has been reiterated in the case of Jane Samba Mukala v Ol Tukai Lodge Limited [2013] eKLR
and reinforced in National Bank of Kenya v Samuel Nguru Mutonya [2019] eKLR, displaying
that it has now been enshrined in Kenyan case law.

Question Four (10 Marks)

1. What is constructive dismissal? (3 Marks)

Constructive Dismissal can is best encapsulated by MAUREEN ONYANGO J in the case of

Catherine Kinyany v MCL Saatchi & Saatchi [2011] eKLR, where she states:

“…for a claim of constructive dismissal to succeed, the Claimant must show that the Respondent
acted in a way that made it extremely hard for the Claimant to continue working.”

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In other words the Employer must create a situation whereby the employee finds it extremely
difficult to discharge their duties to the standard expected, this way by resignation the employee is
found to have been constructively dismissed. In the case above the employee was found to not have
been constructively dismissed This was because the Claimant was sent home while the employer/
Respondent carried out investigations further into the matter. Additionally, they did not wait for
the disciplinary matter into them to finish and resigned before it could do so. The Court
therefore found that the employee had resigned and was not summarily dismissed.

The reasoning of the Court in the Catherine Kinyany case can be based on the test for
constructive dismissal found in the case of Western Excavating (ECC) Ltd. -v- Sharp [1978]
QB 761 Lord Denning stated the test for constructive dismissal is narrow, precise and
appropriate to prevent manipulation or overstretching of the principle of constructive
dismissal.

2. What are the principles applicable to constructive dismissal of employees?

(7 Marks)

In the case of Coca Cola East & Central Africa v Maria Kagai Ligaga [2015] eKLR the Court of
Appeal created the following principles to be applied in a case of constructive dismissal.
These are as follows:

The legal principles relevant to determining constructive dismissal include the following:

A. What are the fundamental or essential terms of the contract of employment"

B. Is there a repudiatory breach of the fundamental terms of the contract
through conduct of the employer"
C. An objective test is to be applied in evaluating the employer’s conduct.
D. There must be a causal link between the employer’s conduct and the reason
for employee terminating the contract i.e. causation must be proved.

E. An employee may leave with or without notice so long as the employer’s

conduct is the effective reason for termination. he burden to prove
repudiatory breach or constructive dismissal is on the employee.”
F. Facts giving rise to repudiatory breach or constructive dismissal are varied

In the Coca Cola Case the Court ruled in favor of the Claimant as it found that:

“… the respondent submitted that the conduct of the appellant constituted harassment, emotional
distress and intolerable behavior; that through the frequent postings and relocations with no work or

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duty assigned, the appellant acted in a manner that destroyed the employer employee relationship
and this constituted significant change of circumstances.”

In stating this the Court implies that all of the legal principles or test set out to determine if a claim is
one of constructive dismissal are met. The sentiments of the Court meet the requirements as set out
by Lord Denning in Lord Denning in Western Excavating (ECC) Ltd. -v- Sharp [1978] QB
761, which he states as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract
of employment or which shows that the employer no longer intends to be bound by one or more of
the essential terms of the contract”

This shows how Coco Cola made it so hard for their employee to fulfil her duties that went
to the root of the contract as she did could not settle in one country and properly execute
her duties before she was moved. Therefore, despite the fact that she resigned it she was
still constructively dismissed by Coco Cola as Lord Denning explains in the same case stating:
“The employee is entitled in those circumstances to leave at the instant without giving any
notice at all or alternatively, he may give notice and say that he is leaving at the end of the
notice.

Question Five (10 Marks)

The Employment Act of Kenya has undergone recent change, the most recent
amendments was ushered through the Employment (Amendment) Act No. 15 of
2022.
Critically discuss the changes that were brought by the Employment (Amendment)
Act No. 15 of 2022 and their
relevance.                                                                                   
 
[1] Cause No. 1050 of 2011

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