Kenya Plantation & Agricultural Workers Union v Xpressions Flora Limited [2016] KEELRC 879 (KLR)
The bottom line
#Kenya's Employment Court ruled that letting a contract 'lapse' without explanation, or firing without a hearing, counts as unfair dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether Aggrey Nyongesa Ochango's contract lapsed or he was dismissed
Though on a fixed term contract, the employer's conduct (approved leave form showing resumption date, no terminal leave, history of renewals) created a legitimate expectation of renewal; treating the contract as lapsed was an unfair labour practice amounting to dismissal
The Court inferred from the approved leave form requiring resumption on 5 August 2013, the absence of terminal leave, and the pattern of prior renewals that the parties did not intend the contract to end. The employer's failure to indicate renewal was discretionary meant purporting that the contract lapsed unfairly defeated the Grievant's legitimate expectation, amounting to an unfair labour practice constituting dismissal.
Whether Robert Kipyegon Chepkwony absconded or was dismissed
Even if absent without permission, dismissal without compliance with section 41 procedural requirements was unfair
The Grievant testified guards denied him entry on 23 May 2013, evidence the Respondent never rebutted, making denial of entry probable. Under section 41 of the Employment Act, 2007, an employer must conduct a hearing or attempt to reach the employee before dismissal for absence. The Respondent did neither, so the dismissal offended the statutory requirements.
Appropriate remedies
Reinstatement declined due to time lapse; gratuity declined for under 5 years' service; pay in lieu of notice and section 49 compensation awarded based on length of service
The Court held reinstatement inappropriate due to lapse of time. Gratuity under clause 24 of the CBA requires more than 5 years' service, which neither Grievant had. Under sections 35(1)(c) and 36 of the Employment Act, monthly-paid employees were entitled to one month's pay in lieu of notice, and under section 49(1)(c) compensation was scaled to service: 3 months' wages for 2 years' service and 5 months' for 4 years'.
Legal principles established
#- Where an employer's conduct evinces an intention not to renew a fixed term contract without notice, it amounts to an unfair labour practice constituting dismissal
- An employer must comply with section 41 of the Employment Act before dismissing an employee for absence, including attempting to hear the employee's explanation
Court orders
#- 1.Respondent to pay Aggrey Nyongesa 1 month pay in lieu of notice (Kshs 4,495/-) and 3 months wages compensation (Kshs 18,885/-), total Kshs 23,380/-
- 2.Respondent to pay Robert Kipyegon 1 month pay in lieu of notice (Kshs 5,519/-) and 5 months wages compensation (Kshs 36,595/-), total Kshs 42,114/-
- 3.Respondent to issue Certificates of Service to the Grievants within 14 days
- 4.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007); specific provision not cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation & Agricultural Workers Union v Xpressions Flora Limited [2016] KEELRC 879 (KLR)", Case Analysis (2016). Cause No 296 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/879/eng@2016-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.