On Conflict between secular law and personal law: The Case of Mohd. Ahmed Khan v. Shah Bano Begum & Others, 1985 SCR (3) 844

Mohd. Ahmed Khan v. Shah Bano Begum & Others, 1985 SCR (3) 844

Supreme Court of India, 1985

1. Background and Significance

The Shah Bano case is one of the most important judgments in Indian family law and constitutional law. It involved a Muslim woman’s claim for maintenance (alimony) from her husband after divorce. The case sparked nationwide debate concerning:

• Muslim Personal Law
• Women’s rights under secular criminal law
• The relationship between the Constitution and religious personal laws
• The idea of a Uniform Civil Code (UCC) under Article 44 of the Indian Constitution

It remains a cornerstone case for discussions on gender justice and legal reforms.

2. Facts of the Case

• Shah Bano, a 62-year-old Muslim woman, was divorced by her husband, Mohd. Ahmed Khan, through talaq (triple divorce) after more than 40 years of marriage.
• Khan stopped providing maintenance, arguing that under Muslim Personal Law, he only had to pay mehr and maintenance during the iddat period (a short period post-divorce).
• Shah Bano filed an application under Section 125 of the Code of Criminal Procedure (CrPC)—a secular provision applicable to all citizens—seeking monthly maintenance.
• Khan argued that because both parties were Muslim, the matter should be governed exclusively under Muslim Personal Law, not secular criminal law.

3. Issues Before the Court

1. Does Section 125 CrPC apply to Muslim women, or are they governed solely by Muslim Personal Law?
2. Can a divorced Muslim woman claim maintenance beyond the iddat period under secular law?
3. What is the relationship between constitutional rights, personal laws, and the State’s obligation to move toward a Uniform Civil Code?

4. Arguments

Husband’s Arguments

• Muslim Personal Law limits responsibility for a divorced woman to iddat and mehr.
• Section 125 CrPC should not override religious law.
• After talaq and payment of mehr, no further obligation existed.

Wife’s Arguments

• Section 125 CrPC is religion-neutral.
• A divorced woman unable to maintain herself is entitled to maintenance, irrespective of religion.
• Personal law cannot deprive her of constitutional protections and statutory remedies.

5. Holding (Decision)

The Supreme Court held that:

1. Section 125 CrPC applies to all citizens, including Muslims.

Religion is irrelevant—the provision is a social justice measure to prevent destitution.

2. A divorced Muslim woman is entitled to maintenance beyond the iddat period if she cannot maintain herself.

The husband's statutory obligation continues until she is able to maintain herself.

3. Muslim Personal Law does not conflict with this conclusion.

The Court held that Muslim law requires fair treatment and does not prohibit post-iddat support in certain forms.

4. Strong observation on the need for a Uniform Civil Code (UCC).

The Court criticized government inaction and noted that India should move toward a UCC to achieve national unity and gender equality.

6. Reasoning

1. Criminal law prevails over personal laws where social welfare is involved

Section 125 CrPC is a criminal procedural law aimed at preventing vagrancy and destitution.
It cannot be eclipsed by religious personal law.

2. Purpose of maintenance laws is protection, not interference with religion

The Court emphasized that maintenance is for survival, not for regulating religious practices.

3. Personal law itself does not bar extended maintenance

The Court interpreted Islamic principles in a progressive light, stating that the Qur’an encourages fair treatment and financial support for divorced women.

4. Constitutional principles demand gender justice

The Court referred to Articles:

• 14 (Equality)
• 15 (Non-discrimination)
• 21 (Right to life and dignity)

These reinforce the rights of women to financial protection after divorce.

7. Legal Principle Established

• Section 125 CrPC is a secular, overriding provision that applies to all Indian citizens, regardless of religion.
• A divorced Muslim woman has the right to claim maintenance beyond the iddat period.
• Personal laws cannot defeat statutory law designed for social justice.

8. Aftermath and Legislative Response

The judgment sparked intense political and religious debate.
In response, the Government enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, which attempted to limit Shah Bano–style maintenance but was later read expansively by courts to preserve women’s rights (Danial Latifi v. Union of India, 2001).

9. Academic Importance

The case is crucial in the study of:

• Conflict between secular law and personal law
• Gender justice in family law
• Constitutional interpretation (especially Article 44 and UCC)
• Judicial activism in social matters
• Evolution of maintenance rights of divorced women in India

10. Legal Advisory Significance (For Practitioners & Clients)

• Lawyers advising Muslim women can rely on Section 125 CrPC for maintenance claims, irrespective of personal law restrictions.
• Clients should be informed that personal laws cannot override statutory rights relating to subsistence and welfare.
• The case forms strong precedent supporting women’s rights in maintenance disputes.
• Even after the 1986 Act, courts continue to interpret the law to ensure fair protection for divorced Muslim women.

Marbury v. Madison: Establishing the Supreme Court’s Constitutional Oversight

Marbury v. Madison (1803)

1. Overview
Marbury v. Madison is one of the most important cases in United States constitutional history. Decided in 1803, it established the principle of judicial review, which gives courts—especially the Supreme Court—the power to declare laws made by Parliament/Congress unconstitutional. This case is frequently studied around the world because it clearly defines the role of the judiciary in a democratic system.

2. Background of the Case
At the end of his term, President John Adams appointed several officials, including William Marbury, to government positions. Although Marbury’s appointment was approved and signed, the commission (official document) was not delivered before the new president, Thomas Jefferson, took office.

Jefferson instructed his Secretary of State, James Madison, not to deliver the commission.
Marbury then went directly to the Supreme Court seeking an order (a writ of mandamus) compelling Madison to issue the document.

3. Key Questions Before the Court
The Supreme Court considered three main issues:

1. Was Marbury entitled to his commission? – Yes.
2. If his right was violated, was there a remedy? – Yes.
3. Could the Supreme Court lawfully issue that remedy? – No. The Court held it did not have jurisdiction because the law giving it that power was unconstitutional.

4. What the Court Decided (The Holding)
Chief Justice John Marshall ruled that:

• Marbury had a legal right to his commission.
• The government’s refusal to deliver it violated that right.
• However, the section of the Judiciary Act giving the Supreme Court power to issue such orders exceeded the limits placed by the Constitution. Therefore, the Court could not grant Marbury’s request.

5. Why This Case Matters
This case established judicial review—the idea that the courts can:

• Interpret the Constitution, and
• Strike down any law that contradicts the Constitution.

This made the judiciary an independent and equal branch of government, ensuring that no branch (executive, legislative, or judiciary) has unchecked power.

6. Practical Importance for Clients
For clients, the lesson of Marbury v. Madison is that:

• The courts can protect individual rights when government actions overstep legal or constitutional limits.
• There is always a legal mechanism for challenging decisions made without proper authority.
• The Constitution is the ultimate law, and any act that violates it can be challenged and overturned.

Legal Commentary on Compulsory Leave, Procedural Fairness, and Constitutional Compliance in Kenya: The Case of Njoroge & 2 others v Kenya Medical Supplies Authority & 3 others [2025] KEELRC 3037 (KLR)

I. Introduction

The judgment in Njoroge & 2 others v Kenya Medical Supplies Authority & 3 others represents a significant development in Kenyan employment law, particularly regarding the intersection of procedural fairness, fair labour practices, and constitutional protections. The case addresses the legality of placing employees on compulsory leave without prior notice or an opportunity to be heard and demonstrates the judiciary’s commitment to constitutionalising employment rights. This commentary provides a detailed analysis of the facts, legal issues, judicial reasoning, constitutional implications, and policy considerations arising from the decision.

II. Factual Background

The Petitioners were employees of the Kenya Medical Supplies Authority (KMSA) and were placed on compulsory leave without prior notification or an opportunity to be heard. Following this action, the 1st Petitioner resigned, claiming constructive dismissal. The Petitioners alleged that the employer’s conduct constituted unfair labour practice, discrimination, and a breach of their constitutional rights under Articles 27, 41, 47, 50, and 236 of the Constitution.

The case highlights a common practical dilemma in employment management: balancing employer prerogative in workforce administration against employee constitutional and procedural rights.

III. Legal Issues

The case raised several interrelated legal questions:

1. Whether placing employees on compulsory leave without prior notice, explanation, or hearing constitutes a violation of fair labour practices and fair administrative action.
2. Whether the unilateral imposition of leave can amount to constructive dismissal under Kenyan law.
3. The appropriate remedies for employees whose constitutional rights under Articles 27, 41, 47, 50, and 236 are violated in an employment context.

IV. Court’s Holding and Reasoning

The Court held that the forced leave without notice, justification, or an opportunity to be heard constituted unfair labour practice and unlawful administrative action. It emphasized several key principles:

1. Procedural Fairness as a Constitutional Requirement
   The Court anchored its reasoning on Article 47 (fair administrative action) and Article 50 (right to a fair hearing), holding that procedural safeguards apply to employment decisions affecting rights, including compulsory leave. Even in public institutions, managerial discretion must be exercised in compliance with natural justice principles, including prior notice, explanation, and the opportunity to respond.
2. Constructive Dismissal
   The Court found that the 1st Petitioner’s resignation constituted constructive dismissal. Constructive dismissal arises where employer conduct fundamentally undermines the employment relationship, leaving the employee no reasonable alternative but to resign. Here, the unilateral leave disrupted the employment relationship to such an extent that resignation was effectively compelled.
3. Constitutional Violations and Remedies
   The Court recognized violations of Articles 27, 41, 47, 50, and 236, awarding Kshs. 6 million each to the 1st and 3rd Petitioners for constitutional infringements and six months’ salary to the 1st Petitioner for constructive dismissal. This demonstrates the Court’s willingness to link statutory employment protections with constitutional safeguards to ensure comprehensive redress.

V. Doctrinal Analysis

1. Procedural Fairness in Employment Law

Traditionally, procedural fairness in employment focused on disciplinary hearings or dismissals. Njoroge expands this principle to include pre-dismissal managerial actions, such as compulsory leave. This aligns with administrative law doctrines, emphasizing that any action affecting an employee’s substantive rights must follow fair procedures, regardless of whether the action constitutes dismissal.

2. Constructive Dismissal Doctrine

The Court reaffirmed that constructive dismissal does not require a formal termination notice. It arises from employer conduct that fundamentally breaches the employment contract, including unilateral, unjustified, or procedurally defective interventions. This approach strengthens employee protection and aligns Kenyan jurisprudence with common law principles, including those recognized in South African and UK law.

3. Integration with Constitutional Law

The decision is particularly significant for constitutionalising employment protections. Articles 41 and 47 now serve as key instruments for evaluating fair labour practices, procedural fairness, and employer accountability. This integration illustrates the Court’s transformative approach, which ensures that administrative and employment decisions respect both substantive and procedural constitutional rights.

VI. Comparative Perspective

Comparative jurisprudence demonstrates a similar emphasis on procedural safeguards:

• South Africa: The Labour Relations Act requires hearings before suspension or dismissal.
• United Kingdom: Employment tribunals consider whether procedural fairness was observed before upholding unilateral employer actions.

Njoroge aligns Kenya with these jurisdictions, reinforcing the global trend of embedding due process in employment law, particularly for public sector employees.

VII. Policy Implications

1. Employer Practices: Public and private sector employers must develop clear policies regarding compulsory leave, including notice requirements, explanation of reasons, and the opportunity for employees to be heard.
2. Human Resource Management: HR professionals must ensure procedural compliance to avoid claims of unfair labour practice or constructive dismissal.
3. Legislative Reform: The decision suggests a need for statutory guidelines on compulsory leave, particularly in public institutions, to codify procedural safeguards.
4. Judicial Precedent: This case establishes a benchmark for damages in constitutional violations arising from unfair labour practices, guiding both tribunals and HR managers.

VIII. Conclusion

Njoroge & 2 others v Kenya Medical Supplies Authority underscores the judiciary’s commitment to protecting employee rights through constitutional guarantees, extending the scope of procedural fairness beyond traditional dismissal or disciplinary contexts. The case consolidates principles of fair labour practice, procedural justice, and constructive dismissal and signals to employers the need for transparent, justified, and legally compliant management of employment actions, including compulsory leave.

The judgment also provides a doctrinal and policy framework for advising clients on employment practices in Kenya, highlighting the necessity of procedural compliance to mitigate exposure to constitutional claims and compensation liability.

Discaimer:

Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap. 301): Structure, Purpose, and Legal Analysis

1. Paraphrased Summary of the Provision

Subsection (1):

Regardless of any other law or any clause in a lease agreement, a controlled tenancy cannot be ended, altered, or varied unless the process set out under the Act is followed. This section overrides any inconsistent terms in the tenancy agreement.

Subsection (2):

If a landlord wishes to terminate a controlled tenancy or change its terms to the tenant’s disadvantage (for example, increasing rent or removing a service), the landlord must issue a formal notice to the tenant, using the prescribed statutory form.

Subsection (3):

Similarly, if a tenant wants a rent reassessment or changes to the tenancy terms, he or she must serve the landlord with a notice in the prescribed form.

Subsection (4):

A tenancy notice does not take effect until a minimum of two months after the receiving party gets it. However:

• (i) Termination cannot take effect before the earliest date the tenancy could otherwise have ended under the contract.
• (ii) If the lease provides for a longer notice period than two months, that longer period applies.
• (iii) The landlord and tenant can agree in writing to a shorter notice period.

Subsection (5):

For a tenancy notice to be valid, it must:

1. State the grounds or reasons for the proposed termination or change; and
2. Require the recipient to respond in writing within one month, indicating whether they agree or disagree.

Subsection (6):

A notice is properly served if delivered personally to the other party, to a responsible adult at the premises, to a servant residing or employed there, or by registered post to the last known address. Service is deemed effected on the date of personal delivery or the postal receipt date.

2. Analytical Commentary

2.1 Introduction and Legislative Intent

Section 4 of Cap. 301 lies at the heart of Kenya’s regime for the protection of commercial tenants in “controlled tenancies.” Enacted in the early 1960s, the Act sought to correct the historical imbalance between landlords—often wielding superior bargaining power—and small business tenants dependent on leased premises for livelihood.

This section operationalises that protective purpose by regulating how and when a controlled tenancy can be terminated or altered, thereby ensuring predictability, fairness, and due process in landlord–tenant relations. It effectively transforms the landlord’s proprietary rights into rights subject to statutory procedural safeguards.

2.2 The Principle of Statutory Control and Contractual Override

Subsection (1) is peremptory: it nullifies any contractual or statutory provision inconsistent with the Act’s requirements. In effect, parties cannot “contract out” of Cap. 301 protections. The provision thus embodies a public-law limitation on freedom of contract, justified by the legislature’s intention to protect tenants who occupy commercial premises as a source of income or business continuity.

Kenyan courts have consistently upheld this principle. In Karanja v Savings & Loan (K) Ltd [1986] KLR 78, the High Court noted that once a tenancy falls within the definition of “controlled tenancy,” the landlord’s rights are curtailed by statute, and termination must strictly comply with Section 4.

2.3 The Prescribed Notice: Procedure and Purpose

Subsections (2) and (3) establish reciprocal rights and obligations of notice for both landlords and tenants. The requirement that the notice be in the prescribed form (Form A or B in the Schedule to the Act) ensures uniformity and legal certainty.

This procedural formalism is not mere technicality—it guarantees transparency, allowing the tenant to understand precisely why termination or alteration is sought, and to invoke statutory dispute mechanisms under Section 6, which permits referral to the Business Premises Rent Tribunal (BPRT).

Failure to issue the prescribed notice renders any attempted termination null and void ab initio, as held in Caledonia Supermarket Ltd v Kenya National Examinations Council [2017] eKLR, where the landlord’s informal notice was declared invalid.

2.4 Time Frames and Protection against Abrupt Termination

Subsection (4) prescribes a minimum two-month notice period before any notice takes effect. The policy rationale is to protect tenants from sudden eviction or disruption to their business operations. The provisos balance flexibility and fairness:

• Clause (i) ensures that landlords cannot use the Act to shorten the original contractual term.
• Clause (ii) respects longer notice periods already agreed by the parties, reinforcing the principle that the Act provides minimum protections, not ceilings.
• Clause (iii) allows for consensual waiver, reflecting a limited retention of party autonomy within the statutory framework.

In Shah v Aggarwal [1983] KLR 100, the court underscored that failure to observe the statutory notice period invalidates termination and that any premature action amounts to unlawful eviction.

2.5 Substantive Content of the Notice: Grounds and Right to Respond

Subsection (5) introduces two vital substantive requirements:

1. The notice must state specific grounds (for instance, rent increase, breach, redevelopment, or personal occupation); and
2. It must invite a written response within one month.

This provision embeds a quasi-procedural fairness principle within the tenancy framework, mirroring administrative law values of notice, hearing, and reasoned decision-making. It ensures that neither party can act arbitrarily and provides a record for BPRT adjudication if a dispute arises.

Courts have treated the omission of reasons as fatal to the validity of the notice. In Patel v Rent Restriction Tribunal [1972] EA 446, it was held that the landlord’s notice lacking reasons for termination could not be enforced.

2.6 Service and Proof of Delivery

Subsection (6) prescribes modes of service—personal delivery, delivery to an adult member of the household, to a servant, to the employer, or by registered post. The detailed service provisions reflect the legislature’s intent to avoid disputes over whether notice was received.

The deeming clause, which makes service effective on delivery or postal receipt, simplifies proof while protecting both parties’ procedural rights. Nonetheless, Kenyan courts have required strict proof of service, especially where the landlord relies on termination to commence eviction proceedings (Gachanja v Commercial Bank of Africa [2019] eKLR).

2.7 Interaction with the Business Premises Rent Tribunal

Section 4 operates in tandem with Section 6 of the Act, which allows a party receiving a notice to refer the matter to the BPRT within one month. The Tribunal’s supervisory role ensures judicial oversight of any intended termination or variation, embodying the legislature’s vision of a controlled rather than a laissez-faire tenancy environment.

3. Doctrinal and Constitutional Significance

3.1 Balancing Property Rights and Socio-Economic Rights

The Act, through Section 4, mediates the tension between Article 40 of the Constitution (protection of property rights) and Article 43(1)(c) (right to economic and social security, including work and livelihood). It constrains landlords’ proprietary autonomy to secure the tenant’s livelihood interest in continuity of business premises—a recognition that tenancy relationships have social as well as economic dimensions.

3.2 The Public–Private Divide and Regulatory Justice

Section 4 exemplifies how private law relationships can be constitutionalised through legislative intervention. By mandating procedural fairness and reason-giving, the statute introduces principles characteristic of administrative justice into the private sphere. It reflects Kenya’s broader movement towards transformative constitutionalism, where fairness and due process extend beyond public administration to private economic relations.

4. Comparative and Policy Perspectives

Kenya’s Cap. 301 aligns with global trends in landlord–tenant regulation, akin to the UK Landlord and Tenant Act 1954, which similarly restricts termination of business tenancies without statutory notice and grounds. The underlying policy rationale—to protect the continuity of businesses and prevent economic displacement—remains consistent.

However, the Kenyan framework is unique in providing an adjudicative tribunal (the BPRT) with quasi-judicial powers. This institutional design ensures speedy, accessible, and specialised dispute resolution, reflecting a commitment to social justice within commercial regulation.

5. Conclusion

Section 4 of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act stands as the procedural cornerstone of Kenya’s commercial tenancy regime. It embodies a deliberate legislative effort to subordinate contractual formalism to fairness, predictability, and accountability.

By mandating prescribed notice, sufficient lead time, stated grounds, and proof of service, the section ensures that neither party—especially the economically weaker tenant—is subjected to arbitrary eviction or unilateral alteration of terms.

In the modern context, as Kenya urbanises and small enterprises depend increasingly on leased premises, Section 4 continues to serve as a statutory expression of fair dealing and constitutional justice in private economic relations.

References

1. Landlord and Tenant (Shops, Hotels and Catering Establishments) Act, Cap. 301, Laws of Kenya.
2. Karanja v Savings & Loan (K) Ltd [1986] KLR 78.
3. Caledonia Supermarket Ltd v Kenya National Examinations Council [2017] eKLR.
4. Shah v Aggarwal [1983] KLR 100.
5. Patel v Rent Restriction Tribunal [1972] EA 446.
6. Gachanja v Commercial Bank of Africa [2019] eKLR.

Legitimate Expectation and Fairness in Successive Fixed-Term Contracts: The Case of Changalwa v Unga Limited [2025] KEELRC 1389 (KLR)

Legitimate Expectation and Fairness in Successive Fixed-Term Contracts: The Case of Changalwa v Unga Limited [2025] KEELRC 1389 (KLR)

Factual Summary

In Changalwa v Unga Limited, the Employment and Labour Relations Court (ELRC) considered whether an employee engaged on consecutive fixed-term contracts over a long period could claim a legitimate expectation of renewal or prior notice of non-renewal.

The claimant had worked for Unga Limited for thirteen consecutive years under successive fixed-term contracts. Despite being formally a fixed-term employee, he was included in a gratuity scheme available only to permanent staff. When the employer allowed the last contract to lapse without renewal or advance notice, the employee contended that this violated his legitimate expectation and amounted to an unfair labour practice.

The employer countered that the contract had expired by effluxion of time, and that fixed-term employment does not create an automatic right or expectation of renewal.

The court disagreed with the employer. It found that the claimant’s continuous service, combined with treatment identical to permanent employees, created a legitimate expectation that the contract would either be renewed or that he would receive prior notice of non-renewal. The court held that the respondent’s conduct violated the constitutional right to fair labour practices under Article 41 of the Constitution of Kenya, 2010 and Section 45 of the Employment Act, 2007.

Accordingly, the non-renewal was declared unfair, and the court awarded appropriate compensation.

Analytical Legal Commentary

1. Introduction

The Changalwa decision marks an important addition to Kenyan jurisprudence on the treatment of long-serving employees under fixed-term arrangements. It underscores the judiciary’s continued expansion of the doctrine of legitimate expectation into the employment law sphere, ensuring that the letter of contractual terms does not override the spirit of fairness guaranteed by the Constitution.

The case reflects the delicate balance courts must strike between contractual autonomy—allowing parties to define the duration of employment—and equitable fairness—ensuring employers do not exploit fixed-term contracts to deny employees rights normally associated with permanent employment.

2. Legal Issue

The central issue before the court was whether prolonged employment through successive fixed-term contracts, coupled with benefits afforded to permanent staff, can generate a legitimate expectation of continued employment or notice of termination.

3. The Court’s Findings

The ELRC held that the combination of the claimant’s 13 years of uninterrupted service and his participation in a permanent employee gratuity scheme created a legitimate expectation of renewal or prior notice. The employer’s failure to provide either amounted to procedural and substantive unfairness.

The court drew on the doctrine of legitimate expectation—traditionally rooted in administrative law—and affirmed its applicability in employment relations. By doing so, the court extended constitutional protection to employees facing abrupt or arbitrary non-renewals of fixed-term contracts.

4. Analytical Discussion

(a) Fixed-Term Contracts and Their Legal Nature

Under general employment law, fixed-term contracts terminate automatically upon expiry, without the need for notice, unless renewal is explicitly agreed upon. This principle was reiterated in several prior decisions, including Registered Trustees of the PCEA & Another v Ruth Gathoni Ngotho-Kariuki [2017] eKLR.

However, Kenyan courts have increasingly recognised that strict adherence to this principle may produce inequitable outcomes, particularly where employers repeatedly renew fixed-term contracts for extended periods—effectively creating permanent relationships in substance, though not in form.

(b) Legitimate Expectation in Employment Law

The doctrine of legitimate expectation, borrowed from administrative law, protects individuals from arbitrary deviation from an established pattern of conduct by an authority or employer. In employment relations, it prevents employers from using fixed-term contracts to disguise ongoing employment relationships.

In Changalwa, the court reaffirmed that legitimate expectation may arise where:

1. There is consistent renewal of contracts over time;
2. The employer’s conduct suggests continuity (e.g., inclusion in permanent staff benefits); and
3. The employee reasonably relies on such conduct to expect renewal or advance notice.

This reasoning aligns with Elizabeth Washeke & Others v Airtel Networks (K) Ltd [2013] eKLR and Transparency International Kenya v Sheila M. M’Mbijjewe & Others [2022] eKLR, where the ELRC held that fairness and good faith must guide decisions regarding non-renewal.

(c) Fair Labour Practices under Article 41

Article 41(1) of the Constitution guarantees every worker the right to fair labour practices, while Section 45(2) of the Employment Act prohibits unfair termination. Although non-renewal of a fixed-term contract is not, strictly speaking, a “termination,” courts have interpreted these provisions purposively to protect employees from arbitrary discontinuation of employment.

In Changalwa, the court emphasised that employers who maintain employees on long, rolling fixed-term contracts cannot rely solely on the technical expiry of time to defeat constitutional obligations of fairness and transparency. This constitutionalisation of employment fairness represents a progressive reading of Article 41, ensuring that employment relationships are governed not only by contractual form but also by substantive justice.

(d) Practical Implications for Employers

The judgment sends a clear warning to employers who habitually engage employees under consecutive fixed-term contracts. Where such arrangements extend for several years and mirror the conditions of permanent employment, employers risk creating implied legitimate expectations.

To mitigate liability, employers should:

• Clearly define the temporary nature of fixed-term engagements;
• Communicate renewal or non-renewal decisions in advance;
• Avoid extending permanent benefits (such as pension or gratuity) to fixed-term employees unless expressly warranted; and
• Consider converting long-serving fixed-term employees to indefinite contracts where the employment need is continuous.

5. Ratio Decidendi

Where an employee serves under successive fixed-term contracts for an extended period and is treated similarly to permanent staff, a legitimate expectation of renewal or prior notice arises. Failure to meet that expectation amounts to unfair labour practice, contrary to Article 41 of the Constitution and Section 45 of the Employment Act.

6. Significance of the Decision

Mabonga (typo: Changalwa) contributes to the growing jurisprudential shift from formal contractualism to substantive fairness in Kenyan labour law. It builds upon earlier rulings recognising legitimate expectation as a shield against arbitrary employment decisions.

The case underscores the courts’ willingness to scrutinise the substance of employment relationships—not merely their contractual labels—and to enforce fairness consistent with the Constitution’s transformative ethos.

By extending administrative law principles into employment relations, the court affirms that employment, as a social and constitutional relationship, cannot be governed solely by rigid contract law doctrines.

7. Conclusion

Changalwa v Unga Limited reaffirms that fairness in employment extends beyond the written contract to the conduct and expectations arising from a long-standing employment relationship. It represents a commitment to equity, good faith, and respect for employees’ constitutional rights to fair labour practices.

For employers, it serves as a cautionary precedent: repeated renewals and inclusion of fixed-term employees in permanent benefit schemes may blur the line between fixed and permanent employment—creating enforceable legitimate expectations and potential liability for unfair labour practices.

Key Authorities:

• Registered Trustees of the Presbyterian Church of East Africa & Another v Ruth Gathoni Ngotho-Kariuki [2017] eKLR
• Transparency International Kenya v Sheila M. M’Mbijjewe & 2 Others [2022] eKLR
• Elizabeth Washeke & Others v Airtel Networks (K) Ltd [2013] eKLR

Disclaimer: This article is for informational purposes only and does not constitute legal advice.

Impartiality as a Component of Procedural Fairness: The Case of Mabonga v Agricultural Finance Corporation [2025] KEELRC 2851 (KLR)

Case Commentary: Mabonga v Agricultural Finance Corporation [2025] KEELRC 2851 (KLR)

1. Introduction

The decision in Mabonga v Agricultural Finance Corporation adds important judicial clarity to the doctrine of procedural fairness within Kenyan employment law. The court reaffirmed that disciplinary proceedings must not only be substantively justified but must also meet the threshold of impartiality and fairness as required under the Employment Act, 2007.

2. Factual Background

The claimant, an employee of the Agricultural Finance Corporation (AFC), was dismissed on allegations of negligence and misconduct. During the internal process, it emerged that one of the panel members who sat in the disciplinary hearing had earlier been directly involved in the investigations—specifically, by extracting data from the claimant’s computer and compiling evidence against him.

Despite the presence of substantive grounds for dismissal, the claimant challenged the fairness of the process, asserting that the participation of an investigator in the disciplinary panel compromised the neutrality of the hearing.

3. The Court’s Holding

The Employment and Labour Relations Court held that the disciplinary process was procedurally tainted. The court reasoned that an individual who investigates alleged misconduct cannot simultaneously sit in judgment over the same matter. This dual role erodes the impartiality required in disciplinary proceedings and undermines the employee’s right to a fair hearing under Section 41 of the Employment Act and Article 47 of the Constitution of Kenya, 2010.

Although the court accepted that the employer had valid and justifiable reasons for terminating the claimant, it concluded that the process was procedurally unfair due to the conflict of interest arising from the panel’s composition.

4. Legal Analysis

(a) Impartiality as a Component of Procedural Fairness

The ruling underscores that fair hearing principles in employment law extend beyond merely giving an employee an opportunity to respond. They also encompass the neutrality of the decision-maker. The presence of an investigator on the disciplinary panel introduces bias—or at least the perception of it—which is enough to vitiate the fairness of the process.

This principle echoes the natural justice maxim nemo judex in causa sua (no one should be a judge in their own cause). The court’s reasoning aligns with both administrative law standards and labour jurisprudence, which emphasize that impartiality is not optional but intrinsic to due process.

(b) Substantive vs. Procedural Fairness

The decision draws a clear line between substantive justification (valid reasons for dismissal under Section 43) and procedural propriety (fair process under Section 41). Even when the employer can demonstrate genuine misconduct or negligence, failure to ensure an impartial process renders the termination unfair under Section 45(2).

This approach maintains consistency with precedents such as Walter Ogal Anuro v Teachers Service Commission [2013] eKLR and Loice Otieno v Kenya Commercial Bank Ltd [2013] eKLR, where courts held that a fair process is an independent requirement from the validity of reasons.

(c) Institutional Implications for Employers

Employers are reminded that disciplinary architecture must reflect the principle of separation of roles:

• Investigators gather facts and evidence.
• Disciplinary panels assess evidence and determine culpability.
• Appeal panels, if any, provide independent review.

Mixing these roles compromises procedural integrity and exposes the employer to liability even where the underlying misconduct is proven.

5. Broader Implications

This ruling reinforces the trajectory of Kenyan labour jurisprudence toward strengthening procedural safeguards in the workplace. It also serves as a caution to HR departments and disciplinary committees to adhere to the rule against bias and to document distinct stages of investigation and adjudication.

Moreover, the judgment resonates with comparative principles found in international labour standards, particularly ILO Convention No. 158 (Article 7), which stresses the right to a fair and impartial hearing before termination.

6. Conclusion

Mabonga v Agricultural Finance Corporation is a timely reaffirmation that justice in employment relations must not only be done but be seen to be done. Even where misconduct is substantiated, a flawed procedure—especially one tainted by bias—renders a termination legally untenable.

The case stands as a strong precedent for ensuring impartiality, transparency, and procedural fairness in disciplinary processes across both public and private sector employment in Kenya.

 

Disclaimer: This article is for informational purposes only and does not constitute legal advice.

 

Filing a Suit to Recover an Unpaid Loan in Kenya

Filing a suit to recover an unpaid loan in Kenya involves several procedural and substantive steps governed by the Civil Procedure Act (Cap 21), the Civil Procedure Rules, 2010, and relevant contractual laws. Below is a structured outline of the process.

1. Establishing the Legal Basis of the Claim

Before filing a suit, ensure that:

• There is a valid loan agreement (written or oral, though written is easier to prove).
• The amount owed is certain and ascertainable.
• There has been a default in repayment.
• You have made a formal demand for payment (usually via a demand letter).

Supporting documents may include:

• Loan agreement or acknowledgment of debt.
• Bank or mobile money statements.
• Correspondence showing reminders and default.
• Promissory notes or cheques, if any.

2. Sending a Demand Letter

Before instituting a suit, your advocate (or you, if self-represented) should issue a demand letter to the borrower.

• The letter formally demands repayment within a specified period (typically 7–14 days).
• It should warn that failure to comply will lead to legal proceedings.

Purpose:
To demonstrate good faith and give the debtor a fair chance to settle before litigation. It also serves as evidence of compliance with the pre-action protocol recognized by Kenyan courts.

3. Choosing the Appropriate Court

The choice of court depends on the monetary jurisdiction (pecuniary limits):

Court	Monetary Jurisdiction (Approx.)
Small Claims Court	Up to KSh 1,000,000
Magistrates’ Court	Up to KSh 20,000,000 (depending on rank of magistrate)
High Court	Above KSh 20,000,000

(Always confirm the latest limits through Gazette Notices or court updates.)

Also consider territorial jurisdiction — typically where the defendant resides, carries on business, or where the transaction occurred (see Section 15 of the Civil Procedure Act).

4. Drafting and Filing the Plaint

A plaint initiates the civil suit. It must include:

• The name of the court.
• Particulars of the parties (plaintiff and defendant).
• The cause of action — facts establishing the existence of the loan and default.
• The amount claimed and any applicable interest.
• The prayer or relief sought (e.g., payment of KSh X, interest, and costs).

Attach supporting documents, such as:

• Loan agreement or proof of the loan.
• Demand letter and evidence of delivery.
• Any other relevant documents.

Additional documents filed with the plaint:

• Verifying affidavit.
• List of documents.
• List of witnesses.
• Witness statements.
• Statement of the plaintiff.

Filing is conducted electronically via the Kenya Judiciary e-filing system: https://efiling.court.go.ke.

5. Service of Summons

Once filed, the court issues summons to enter appearance, which must be personally served on the defendant in accordance with Order 5 of the Civil Procedure Rules.

The defendant has 14 days from the date of service to:

• Enter appearance (indicating intention to defend), and
• File a defence (within 14 days after entering appearance).

6. Default Judgment (If No Defence Is Filed)

If the defendant fails to respond within the prescribed time:

• The plaintiff may apply for a default judgment under Order 10 of the Civil Procedure Rules.
• For a liquidated claim (a fixed sum), the court may enter judgment immediately.

7. Hearing and Determination (If Defended)

If the defendant files a defence:

• The matter proceeds to pre-trial directions and then to hearing.
• Both parties present evidence and call witnesses.
• The court then delivers its judgment based on the evidence presented.

8. Enforcement of Judgment

If judgment is entered in your favour but the debtor still fails to pay, you may enforce it through:

• Warrants of attachment and sale (executed by a licensed auctioneer).
• Garnishee proceedings (to recover funds from the debtor’s bank or employer).
• Committal to civil jail (only after due process and as a last resort).
• Charging orders or other execution against property.

9. Recovery of Costs and Interest

The court may award:

• Interest — as per the loan agreement or at the court’s discretion (typically 12% p.a.).
• Costs of the suit, including filing fees, legal fees, and disbursements.

10. Alternative Dispute Resolution (Optional)

Before or during proceedings, parties may opt for settlement through:

• Negotiation or mediation, as encouraged under Article 159 of the Constitution.
• The court may also refer the matter to court-annexed mediation prior to hearing.

 

Summary Table

Step	Action
1	Gather and verify loan evidence
2	Send a formal demand letter
3	Determine the appropriate court
4	File the plaint and supporting documents
5	Serve summons on the defendant
6	Seek default judgment (if undefended)
7	Proceed to hearing (if defended)
8	Enforce the court’s judgment
9	Recover interest and legal costs