Monday, May 5, 2025

On importance of due process in land transactions and the protection of property rights against fraudulent practices: The case of Harcharan Singh Sehmi & 2 Others v. Rospatech Limited & 5 Others (Environment & Land Case No. 1311 of 2014)

The case of Harcharan Singh Sehmi & 2 Others v. Rospatech Limited & 5 Others (Environment & Land Case No. 1311 of 2014) is a significant land dispute in Kenya, decided by the Environment and Land Court in Nairobi on July 22, 2019. (Harcharan Singh Sehmi & 2 Others V Rospatech Limited & 5 Others[2019] Eklr)

Background

The plaintiffs—Harcharan Singh Sehmi, Harbhajan Singh Sehmi, and Jaswaran Singh—were registered as tenants in common in equal shares of land parcel L.R. No. 209/2759/9 (I.R. No. 12263) in Ngara, Nairobi, following a transfer registered on December 7, 1968. They occupied the property from 1968 until October 2, 2014, when they were forcefully evicted. Upon eviction, Rospatech Limited (1st Defendant) and Tarabana Company Limited (2nd Defendant) took possession, presenting a new title deed for the same plot under a different I.R. number (122963), which the plaintiffs contested as fraudulent. (Harcharan Singh Sehmi, Harbhajan Singh Sehmi & Jaswaran Singh v Rospatech Limited, Tarabana Company Limited, Chief Land Registrar, Nairobi, National Land Commission, Inspector General of Police & Attorney General (Environment & Land Case 1311 of 2014) [2019] KEELC 1981 (KLR) (Environment and Land) (22 July 2019) (Judgment) - Kenya Law, Harcharan Singh Sehmi & 2 Others V Rospatech Limited & 5 Others[2019] Eklr)

Plaintiffs’ Claims

The plaintiffs sought:

Defendants’ Defense

The 1st and 2nd defendants argued that the plaintiffs’ lease had expired in 2001 and the property reverted to the government. They claimed to have lawfully acquired the property through allocation and subsequent purchase. Other defendants, including the Chief Land Registrar and the National Land Commission, denied any wrongdoing or collusion. (Harcharan Singh Sehmi, Harbhajan Singh Sehmi & Jaswaran Singh v Rospatech Limited, Tarabana Company Limited, Chief Land Registrar, Nairobi, National Land Commission, Inspector General of Police & Attorney General (Environment & Land Case 1311 of 2014) [2019] KEELC 1981 (KLR) (Environment and Land) (22 July 2019) (Judgment) - Kenya Law)

Court’s Findings

The court found that: (Tarabana Company Limited v Sehmi & 7 others (Civil Appeal 463 of 2019) [2021] KECA 76 (KLR) (8 October 2021) (Judgment) - Kenya Law)

Judgment

The court ruled in favor of the plaintiffs, granting:

The court dismissed the 2nd defendant’s counterclaim, finding no merit. (Harcharan Singh Sehmi, Harbhajan Singh Sehmi & Jaswaran Singh v Rospatech Limited, Tarabana Company Limited, Chief Land Registrar, Nairobi, National Land Commission, Inspector General of Police & Attorney General (Environment & Land Case 1311 of 2014) [2019] KEELC 1981 (KLR) (Environment and Land) (22 July 2019) (Judgment) - Kenya Law)

Appeal

The 2nd defendant appealed the decision in the Court of Appeal (Civil Appeal No. 463 of 2019). The appeal was heard by Justices M.S.A. Makhandia, P. Nyamweya, and J.W. Lesiit, and judgment was delivered on October 8, 2021. The outcome of the appeal is not specified in the provided sources. (Tarabana Company Limited v Sehmi & 7 others (Civil Appeal 463 of 2019) [2021] KECA 76 (KLR) (8 October 2021) (Judgment) - Kenya Law)

Significance

This case underscores the importance of due process in land transactions and the protection of property rights against fraudulent practices. It highlights the judiciary's role in upholding the rule of law and ensuring justice in land disputes.

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Underscoring the importance of demonstrating both a prima facie case and the likelihood of suffering irreparable injury when seeking injunctive relief: The Case of Bata Brands SA & another v Umoja Rubber Products Limited [2018] eKLR

The case of Bata Brands SA & Another v Umoja Rubber Products Limited (Commercial Case No. 501 of 2017) was heard in the High Court of Kenya at Milimani (Nairobi) under the Commercial and Tax Division. The ruling was delivered on 25 October 2018 by Justice James Aaron Makau.(Kenya Law, Kenya Law)

Case Background

The plaintiffs, Bata Brands SA and its Kenyan licensee, Bata Shoe Company (Kenya) Limited, alleged that the defendant, Umoja Rubber Products Limited, was manufacturing and selling school shoes branded “Shupavu” that closely resembled their distinctive school shoe design known as “Toughees”. The plaintiffs claimed that their design had been in the market for over 15 years and had acquired significant goodwill and reputation. They argued that the defendant's actions amounted to passing off, as consumers could be misled into believing that the "Shupavu" shoes were associated with or originated from the plaintiffs.(Kenya Law)

Court's Findings

  1. Prima Facie Case: The court found that the plaintiffs had established a prima facie case of passing off, noting that the resemblance between the "Toughees" and "Shupavu" shoes was striking and likely to deceive or cause confusion among consumers.(Kenya Law)

  2. Irreparable Injury: The court determined that the plaintiffs had not demonstrated that they would suffer irreparable injury that could not be adequately compensated by an award of damages. Despite the plaintiffs' claims of potential loss of goodwill, the court observed that their sales figures had been increasing over the years, suggesting minimal impact from the defendant's actions.(Kenya Law)

  3. Balance of Convenience: The court held that the balance of convenience did not favor the plaintiffs. It cited the case of Hoswell Mbugua Njuguna v Equity Bank Limited [2012] eKLR, where the court emphasized that for an injunction to be granted, the applicant must satisfy both the conditions of a prima facie case and the likelihood of suffering irreparable injury. Since the plaintiffs failed to meet the second condition, the court declined to grant the injunction.(Kenya Law, Kenya Law)

Outcome

The court dismissed the plaintiffs' application for an injunction, thereby allowing the defendant to continue manufacturing and selling the "Shupavu" branded shoes. The ruling underscored the importance of demonstrating both a prima facie case and the likelihood of suffering irreparable injury when seeking injunctive relief.(Kenya Law)

For a detailed account of the case, you can refer to the full judgment here: (Kenya Law).

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Saturday, May 3, 2025

Doctrine of Frustration: The Case of Kenya Chemical Workers Union v. Vector Pest Control and Supplies Limited [2025] KEELRC 947 (KLR)

Court: Employment and Labour Relations Court, Kenya
 Case No.: [2025] KEELRC 947 (KLR)
 Parties:

  • Claimant: Kenya Chemical Workers Union (the Union)

  • Respondent: Vector Pest Control and Supplies Limited (the Employer)

Issue

The main issue in this case was whether the Respondent (Vector Pest Control and Supplies Limited) could rely on the doctrine of frustration to avoid implementing the Collective Bargaining Agreement (CBA), particularly the monetary clauses, after experiencing financial difficulties. The Claimant alleged that despite a concluded CBA, the Respondent failed to implement the terms of the agreement.

Facts

  • The Claimant and the Respondent entered into a Collective Bargaining Agreement (CBA), which was finalized and agreed upon by both parties.

  • The CBA included monetary clauses, which the Respondent failed to implement.

  • The Respondent argued that it could not implement the monetary clauses of the CBA due to severe financial constraints.

  • The Respondent further argued that its financial struggles were caused by unforeseen circumstances, amounting to frustration of the contract.

Legal Issues

  1. Whether the doctrine of frustration could be invoked by the Respondent based on financial difficulties.

  2. Whether financial hardship constitutes an unforeseen event that can render performance of the CBA impossible.

  3. Whether the Respondent’s financial difficulties could justify non-performance of the CBA.

Court’s Analysis and Reasoning

  1. Doctrine of Frustration:
    The court explained the doctrine of frustration, emphasizing that it arises when an external, unforeseeable event occurs, making the performance of the contract either impossible or significantly different from what was initially agreed. The event must be beyond the control and contemplation of both parties at the time of contract formation.

  2. Financial Hardship Not Constituting Frustration:
    The court rejected the Respondent’s argument that its financial difficulties amounted to a frustrated event. The court held that financial hardship alone does not constitute frustration. It noted that businesses can generally project their financial performance, and the dip in profits experienced by the Respondent after 2021 was foreseeable. Had the Respondent engaged financial experts to project future profitability, it would have been able to plan for such eventualities.

  3. Response to Declining Profits:
    The court further emphasized that, once the Respondent realized its financial position was deteriorating, it could have taken steps to address the situation, such as restructuring or downsizing the business, rather than invoking frustration. The court pointed out that financial difficulties are common in business and should not automatically be used as an excuse for non-performance of a contract.

  4. Frustration Cannot Be Inferred from Foreseeable Events:
    The court clarified that frustration cannot be claimed for events that are foreseeable or result from normal business risks. Business decisions, such as profitability projections, fall within the reasonable expectations of parties entering into a contract.

Court’s Analysis & Conclusion:

 The court noted that financial projections and expert advice could have prevented the situation from becoming an unexpected challenge. The Respondent could have foreseen its financial decline after 2021 and taken measures such as restructuring or downsizing to mitigate the impact.

 The court stressed that frustration cannot be invoked simply because of financial hardship or disappointments in business performance.

The court held that the Respondent’s financial hardship did not amount to frustration of the CBA. The Respondent had the ability to foresee the financial decline and take corrective actions, such as restructuring its operations. The court ruled that financial difficulty alone was not sufficient to justify the invocation of the doctrine of frustration.

The court further emphasized that not all disappointments or difficulties in business will result in the frustration of a contract. The Respondent’s inability to implement the monetary clauses of the CBA was not a result of an unforeseeable or uncontrollable event.

Thus, the Respondent remained obligated to implement the terms of the CBA, and the case was decided in favor of the Claimant (Kenya Chemical Workers Union).

Key Legal Principles

  1. Frustration of Contract: A contract is frustrated when an unforeseeable event occurs, making performance either impossible or radically different from the original terms.

  2. Financial Hardship: Financial difficulties are generally not grounds for invoking frustration, especially when they are foreseeable and could have been mitigated by proper business planning.

  3. Duty to Perform Contracts: A party claiming frustration must show that the event in question was beyond its control and could not have been reasonably anticipated. 

 

Financial Hardship Not a Ground for Frustration: The court firmly held that financial hardship alone does not constitute a ground for frustration, and business difficulties or disappointments do not necessarily lead to a frustrated contract.

Implications of the Decision

This case reinforces the principle that financial challenges alone cannot justify the non-performance of contractual obligations. It places an emphasis on the need for businesses to plan carefully and use expert advice to anticipate and mitigate risks, such as changes in profitability. This case also underscores the high bar that must be met to successfully invoke the doctrine of frustration, particularly in the context of commercial contracts.

Recommendations

  • Businesses should invest in financial planning and expert advice to anticipate and manage potential financial difficulties.

  • Parties to collective agreements or contracts should negotiate and include terms that address unforeseen financial challenges to avoid relying on the frustration defense.

  • Legal practitioners should be mindful of the rigorous requirements for frustration and advise clients accordingly.

    Read the Full case here

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Friday, May 2, 2025

Fixed Term Contracts: The case of Omondi v Mathare Youth Sports Association & another [2025] KEELRC 1158 (KLR)

Brief Background:

The Employment and Labour Relations Court (ELRC) delivered a judgment in the case of Omondi v Mathare Youth Sports Association & another (Cause No. 1049 of 2018) on April 24, 2025. The claimant, Bonface Omondi, sought declarations that his termination was wrongful, malicious, and unfair, violating his constitutional rights, particularly under Articles 27(5) and 41(1) of the Constitution of Kenya. He also sought compensation, including two months' salary in lieu of notice (KSh 59,800), general damages equivalent to twelve months' salary (KSh 358,800), aggravated damages for defamation (KSh 3,000,000), and payment for 24 days of earned leave (KSh 23,920).

The respondents, Mathare Youth Sports Association and Bob Munro, denied the claimant's allegations and contested his entitlement to the reliefs sought. In a ruling dated September 29, 2021, the court struck out the name of the second respondent, Bob Munro, from the proceedings, finding him not a necessary party to the suit. See Kenya Law

The ELRC ultimately dismissed the claimant's case, finding that he had not established that his termination was wrongful, malicious, or unfair. Consequently, the court denied all the reliefs sought by the claimant.

For more detailed information, you can access the full judgment on the Kenya Law website: Kenya Law.

Case Analysis: 

In Omondi v Mathare Youth Sports Association & another [2025] KEELRC 1158 (KLR), the Employment and Labour Relations Court (ELRC) clarified the legal standing of fixed-term contracts in employment law, particularly where such contracts are repeatedly renewed and where disciplinary concerns arise near their end.

Key Points on Fixed-Term Contracts:

  1. Effluxion of Time:

    • The Respondent argued, and the court agreed, that the Claimant’s employment came to an end by effluxion of time, not through termination.

    • Even though the contract had been renewed almost ten times, each contract remained a distinct, time-bound agreement.

  2. Disciplinary Allegations vs. Natural Expiry:

    • The Respondent raised allegations of misconduct but did not act on them through formal termination or disciplinary proceedings.

    • Instead, the contract was allowed to lapse naturally, and this choice was deemed lawful.

    • The court noted that if the contract had been terminated early due to misconduct, a different legal analysis would have applied.

  3. No Automatic Conversion:

    • Repeated renewals of fixed-term contracts do not convert them into permanent contracts.

    • The court rejected the idea that the employer had a continuing obligation to renew, stating that assuming so would “render the purpose” of fixed-term contracts “nonsense.”

  4. Court’s Holding:

    • The Claimant's contract expired at the agreed end date, and his employment was not unfairly terminated.

    • The mention of misconduct in the non-renewal letter did not amount to dismissal, since there was no actual termination before the contract’s expiry.

Legal Implication:

The judgment reinforces that in Kenyan employment law, fixed-term contracts remain enforceable as such, and their natural expiry cannot be equated to unfair dismissal, even if prior misconduct is cited—so long as no premature termination occurs.

The decision in Omondi v Mathare Youth Sports Association & another [2025] KEELRC 1158 (KLR) sets a significant precedent in Kenyan employment law, particularly regarding the handling of fixed-term employment contracts. 

Here's a summary of how this case may influence similar disputes:

1. Reinforces the Validity of Fixed-Term Contracts

  • The court confirmed that even repeated renewals of fixed-term contracts do not transform them into permanent contracts.

  • Employers and employees alike will now have clearer expectations: each fixed-term contract is distinct, and renewal does not imply permanence.

2. Clarifies Non-Renewal vs. Termination

  • The ruling distinguishes between non-renewal due to expiry and termination (including dismissal).

  • An employer is not obligated to renew a fixed-term contract, even if allegations of misconduct exist, provided the contract is allowed to expire naturally without issuing a dismissal.

3. Protects Employer Discretion in Renewals

  • Employers retain the discretion to decline renewal of a fixed-term contract without having to prove misconduct or follow disciplinary procedures—unless early termination occurs.

4. Limits Claims of Unfair Termination

  • Employees on fixed-term contracts will have limited grounds to claim unfair termination unless:

    • The contract is terminated before expiry without just cause, or

    • Due process is not followed in early dismissal.

5. Encourages Clarity in Employment Agreements

  • Both employers and employees are encouraged to clearly define the duration, renewal terms, and expectations in fixed-term contracts to avoid ambiguity and disputes.

Overall Impact:

This case strengthens legal clarity around the end of employment by effluxion of time, helping employers avoid liability where contracts end naturally, while also signaling to employees that long service under fixed terms does not automatically create indefinite employment.

 

 

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Monday, April 28, 2025

On Sexual Harrasment: The case of Kimaile v Co-operative Bank Kenya Limited [2025]

In the case of Kimaile v Co-operative Bank Kenya Limited [2025] KEELRC 1072 (KLR), the central issue revolved around whether the Claimant's conduct could be classified as sexual harassment under the Respondent's policy. The Claimant was dismissed based on allegations of sexual harassment involving two colleagues in the workplace.

The Respondent's sexual harassment policy outlined that harassment occurs when conduct goes beyond typical workplace conversations and exchanges, especially when such behavior is not mutually acceptable to all parties involved. In this case, the Claimant contested the dismissal, arguing that his conduct did not meet the threshold for sexual harassment. Specifically, he argued that there was no indication at the time that his gesture was unwelcome, and that neither of the colleagues involved expressed any discomfort. He also argued that the alleged act did not create a hostile or offensive work environment and that the gesture was a normal and friendly interaction common in a social work setting.

The Court was tasked with determining whether the Claimant's actions fell within the definition of sexual harassment as outlined in the Respondent's policy, and whether the termination was justified under the circumstances. This case highlights the complexity of defining what constitutes sexual harassment in the workplace, especially when the behavior in question is argued to be innocuous or part of regular social interactions.

In summary, the case underlines the importance of clear communication and understanding of workplace policies regarding sexual harassment, as well as the need for employees and employers to be vigilant in ensuring that conduct in the workplace does not inadvertently cross boundaries that could lead to claims of harassment.

The court's observation in Kimaile v Co-operative Bank Kenya Limited [2025] KEELRC 1072 (KLR) underscores a key principle in sexual harassment cases: the determination of whether conduct is "unwelcome" lies with the victim, not with the court or tribunal. The court emphasized that it is the individual victim's perspective that matters when assessing whether behavior is acceptable or offensive. In other words, what constitutes unwanted conduct is not defined by what the court or the general public would find offensive, but rather by whether the victim has made it clear that the conduct is unwelcome.

In this particular case, the court found that the complainants had indicated that the Claimant's conduct was unwelcome. This determination provided the Respondent with a valid basis for terminating the Claimant's employment. The court's reasoning highlights the importance of respecting individual boundaries in the workplace, emphasizing that the victim's comfort and expressed disapproval should guide the assessment of what constitutes inappropriate behavior.

As a result, the Claimant's dismissal was deemed justified, reinforcing the principle that employers are within their rights to take action based on complaints of sexual harassment, particularly when those complaints align with the victim's perception of what constitutes unacceptable conduct. This case also serves as a reminder to both employees and employers to maintain awareness of workplace boundaries and to foster environments where individuals feel safe to express concerns about misconduct.

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Friday, April 11, 2025

Reasons for termination: The Case of Onyango v Riley Falcon Security Services [2025] KEELRC 855 (KLR)

Brief Facts:

On reasons for termination, in the above-cited case, the Claimant’s termination stemmed from a complaint that he reported to work 22 minutes late and was arrogant in responding to the inquiry about the lateness. 

 Analysis & Court's Determination:

The court, in determining whether the Respondent had a valid reason to terminate the Claimant, considered that he had worked for the Respondent for over 20 years and had no recorded case of misconduct.

Additionally, in the court’s view, a 22-minute absence from the workplace is not a valid and fair reason to terminate an employee, nor would being arrogant unless the conduct is habitual or amounts to rudeness. 

To the court, while arrogance denotes hubris, a feeling of self-importance, haughtiness, egotism or being pompous or conceited, rudeness, on the other hand, is associated with being ill-mannered, discourteous, insolent, disrespectful, offensive, or contumelious. 

The Claimant was arrogant but not rude, and according to the court, a reasonable employer would not have terminated the Claimant in similar circumstances.

Full case available here

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Confidentiality: The case of Njuki v CIC Insurance Group Ltd [2025] KEELRC 416 (KLR)

Brief Facts:
On confidentiality, in the above cited case, the Claimant was dismissed for transferring restricted company documents from his work email to his personal email without authorization, violating the Respondent’s policies on gross misconduct. 
 
 
Case Analysis:
The claimant did not dispute the transfer, explaining that he did so after being summoned by the Directorate of Criminal Investigations Insurance Fraud Investigation Unit regarding fraudulent KPLC public liability claims. Feeling threatened with prosecution, he gathered the documents for his self-defence. 
 
The Respondent argued that the documents contained critical and confidential information on fraudulent claims paid on behalf of KPLC. 
 
Court's Determination:
 
However, the court found that since the Claimant only transferred the information to his personal email and did not share it with unauthorized third parties, he did not breach the confidentiality clause in his contract. 
 
There was no evidence that the information was disseminated beyond his personal possession.


The full case is available Here

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Legal Liability for Copyright Infringement: The Case of Rebecca Wanjiku v Christ is the Answer Ministries (CITAM) & Isaac Peter Kalua

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