Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers v Egerton University [2013] KEELRC 639 (KLR)
The bottom line
#Kenya's Industrial Court ruled that expired fixed-term contracts end automatically and employers need not explain non-renewal, so the union's bid to stop outsourcing failed.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent terminated the grievants' contracts of service
The grievants were on fixed term contracts under clause 4 of the CBA, not temporary/casual service under clause 3; the contracts lapsed by effluxion of time and were not terminated, and there was no obligation to give reasons for non-renewal
The court distinguished clause 3 (temporary, essentially casual, service not exceeding three months) from clause 4 (contract employment for three or more months for specific work). The grievants' successive fixed term contracts covering 2009-2013 fell under clause 4. Under section 37 of the Employment Act only casual employment converts to permanent terms; fixed term contracts are automatically subject to the Act's minimum terms and do not convert. The contracts contained no obligation to give reasons for non-renewal, so their non-renewal upon expiry was lawful.
Whether the respondent was obliged to consult the claimant before outsourcing security services
No duty to consult was established; the claimant did not demonstrate any basis or justification for such consultation
The claimant alleged a breach of the obligation to consult before outsourcing. The court found the claimant had not established any basis and justification for such consultation and held there was no such duty before the respondent implemented the outsourced services. The outsourcing had been procured in accordance with the Public Procurement and Disposal Act, 2005 following an interrupted tender process, and the successful provider, Intercity Secure Homes Limited, took over on 1.07.2013, a fact not disputed.
Whether the claimant was entitled to the interlocutory remedies sought in the notice of motion
The claimant failed to establish a prima facie case with probability of success under the Giella v Cassman Brown principles; all prayers failed
The court applied the Giella v Cassman Brown test: a prima facie case with probability of success, irreparable injury otherwise, and balance of convenience where in doubt. In view of its findings that the fixed term contracts lapsed by effluxion of time and that no duty to consult existed, the applicant had no prima facie case, so the interlocutory injunction orders stopping the redundancy and the outsourcing were refused.
Legal principles established
#- Employers are not under any obligation to give employees reasons for non-renewal of fixed term contracts unless such an obligation is created in the expiring contract
- Fixed term contracts are automatically subject to the minimum terms and conditions of service provided for in the Employment Act and are not subject to conversion as applies to casual employment under section 37
- Fixed term contracts that expire by effluxion of time are not terminated by the employer
Court orders
#- 1.The claimant's notice of motion dated 5.07.2013 is dismissed with costs
- 2.Parties invited to agree on a convenient mention date for directions on the hearing of the main suit
- Jurisdiction invoked
- Section 12(2) and (3)(i) of the Industrial Court Act, section 40 of the Employment Act, 2007, section 74(b)(ii) and (c) of the Labour Relations Act, 2007 and the Industrial Court Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers v Egerton University [2013] KEELRC 639 (KLR)", Case Analysis (2013). Industrial Cause (memorandum of claim filed 5.07.2013; exact cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/639/eng@2013-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.