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Court of AppealPartially AllowedCivil Appeal No. 7 of 2016· [2017] KECA 425 (KLR)

The Registered Trustees De La Salle Christian BrothersT/A St. Mary’s Boys’ Secondary School vJulius D. M. Baini [2017] KECA 425 (KLR)

Court of Appeal of Kenya
7 June 2017
PWP. N. WakiRNR. N. NambuyeFSF. Sichale
3,811 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that when a fixed-term work contract simply expires on its end date, that is not unfair termination and the employer owes no notice or reasons for non-renewal.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Waki, Nambuye and Sichale, JJ.A) allowed this first appeal against the judgment of Byram Ongaya, J of the Employment and Labour Relations Court, which had found that the respondent teacher's one-year contract was renewed by conduct beyond 31st December 2014 and that his 'retirement' on 7th January 2015 was unfair termination for want of due process under sections 41 and 43 of the Employment Act, awarding him damages of one year's gross salary and one month's pay in lieu of notice. Reconsidering the whole record as required on a first appeal, the appellate court found the trial court had failed to evaluate two critical letters: the respondent's own request of 18th November 2014 for a one-year extension, and the Principal's written refusal of 20th November 2014, which together established that both parties knew the contract was ending and would not be renewed. The court held that a fixed-term contract ends on its stated expiry date; an employer owes no reasons or notice of non-renewal unless the contract so provides; and non-renewal does not amount to unfair termination. The 7th January 2015 'retirement' letters were referral letters written at the respondent's request and could not create a new contract. The court set aside the lower court's orders, dismissed the respondent's claim in its entirety, and made no order as to costs in both courts, citing the respondent's acknowledged good service to the school. This judgment now binds the ELRC and other subordinate courts on the treatment of fixed-term contract expiry.

Key legal issues

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01

Whether a fixed-term contract is extended by conduct beyond its stated expiry date

Holding

The contract ended on 31st December, 2014; the respondent's letter seeking extension and the employer's written refusal showed both parties understood the contract was ending, and there was no re-engagement thereafter.

Reasoning

The court examined the executed one-year contract, the respondent's own admission that it made no provision for extension, his letter of 18th November 2014 begging for one more year, and the Principal's written refusal of 20th November 2014. It found the trial court had failed to evaluate those letters and defied logic in finding non-delivery, since the respondent had pleaded for extension. The retirement letters of 7th January 2015 were referral letters written at the respondent's request and could not create or terminate a contract.

p. 5
02

Whether non-renewal of a fixed-term contract constitutes unfair termination under the Employment Act

Holding

No. Once the contract expired by effluxion of time with no extension or new contract, there was no termination and hence no unfair termination; the employer owed no reasons or notice of non-renewal.

Reasoning

The court endorsed the principles in Oshwal Academy, adopting Riika J's reasoning in Bernard Wanjohi Muriuki that an employer need give no reasons for non-renewal beyond effluxion of time unless the contract demands it, and the similar statement in Francis Chire Chachi. Since the sections 41 and 45 procedure attaches to termination of employment, and there was no termination here, the statutory protections were not engaged.

p. 7
03

Whether the trial court decided an unpleaded issue

Holding

The trial court erred in framing and deciding an issue (extension of the contract by conduct after working past 31st December 2014) that was not the claim as pleaded, and in failing to evaluate key documentary evidence.

Reasoning

The respondent's pleaded case was that the contract had not terminated and he was still in employment, seeking reinstatement; the issue of working beyond expiry and implied renewal was not canvassed. The court, exercising its first-appeal duty to reconsider the whole evidence, found the trial court's inference of renewal rested on the unexamined 'retirement' letters and ignored the request-and-refusal correspondence, permitting it to disturb the findings of fact.

p. 6

Legal principles established

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  • A fixed-term contract of employment ends on the expiry date fixed in the contract; an employer is under no obligation to give reasons or notice of non-renewal unless the contract itself so requires.
  • Non-renewal of a fixed-term contract on effluxion of time does not amount to unfair termination of employment.
  • On a first appeal, the Court of Appeal will not interfere with the trial court's findings of fact unless they are not based on evidence on record or the court acted on wrong principles.

Court orders

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  1. 1.Appeal allowed
  2. 2.Orders of the Employment and Labour Relations Court set aside
  3. 3.Substituted therefor an order dismissing the claim filed on 10th February, 2015
  4. 4.No orders as to costs here and in the court below

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 35(2)

Cases cited (10)

  • Captain Harry Gandy vs Caspar Air Charters Limited
    [1956] EA 139
  • Nairobi City Council vs Thabiti Enterprises Ltd.
    (1995-98) EA 231
  • Judicial Service Commission vs Gladys Boss Shollei & Another
    (2014) eKLR
  • Isaiah Makokha v. Basco Products (K) Ltd
    [2014] eKLR
  • Jabane -vs- Olenja
    [1986] KLR 661
  • Selle v. Associated Motor Boat Company
    [1968] E.A. 123
  • Oshwal Academy (Nairobi) & Another -vs- Indu Vishwanath
    [2015] eKLR
  • Bernard Wanjohi Muriuki -vs- Kirinyaga Water And Sanitation Company Limited & Another
    [2012] eKLR
  • Francis Chire Chachi -vs- Amatsi Water Services Company Limited
    [2012] eKLR
  • Ruth Gathoni Ngotho-Kariuki -vs- Presbyterian Church of East Africa and Presbyterian Foundation
    [2012] eKLR
On appeal from
Employment and Labour Relations Court at Nyeri
ELRC No. 16 of 2015
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (statutory appeal from the Employment and Labour Relations Court); no specific constitutional or statutory provision is cited in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "The Registered Trustees De La Salle Christian BrothersT/A St. Mary’s Boys’ Secondary School vJulius D. M. Baini [2017] KECA 425 (KLR)", Case Analysis (2017). Civil Appeal No. 7 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/425/eng@2017-06-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.