Thomas Osieko Amulele v Catholic Diocese of Nakuru [2018] KEELRC 134 (KLR)
The bottom line
#A Kenyan court awarded a retired mechanic some unpaid wages and leave pay but rejected his unfair termination claim, stressing the strict three-year deadline for employment claims.
What this practically means
#Executive summary
#Key legal issues
#Nature of employment under successive fixed term contracts
Each fixed term contract created a new employment relationship; the final unwritten period was regulated under section 8 of the Employment Act
The claimant served under successive fixed term contracts, the last written one ending 31 December 2013. After that date no written contract existed, but the claimant testified he continued on the same terms. The court held the unwritten continuation fell under section 8 of the Employment Act, protecting him under the Act.
Limitation of employment claims
Claims outside three years of filing are time barred under section 90
The Memorandum of Claim was filed on 25 April 2017, so only claims arising from employment up to 24 April 2014 could be addressed. The underpayment and leave claims predating that period were barred, following authority that the limitation period in contract matters is never extended.
Absence from work due to sickness
Absence for sickness requires a medical certificate and reporting to the employer; the claimant did neither
Sections 30 and 34 allow sick leave subject to production of a medical certificate. The claimant produced none and did not report his sickness, though the law even permits a third party to report on his behalf. Unexcused absence is grounds for summary dismissal under section 44(4).
Whether termination was unfair
No unfair termination; employment ended on the claimant's own application to retire
The claimant applied to retire on medical grounds on 11 March 2015, and the respondent accepted by letter dated 16 July 2015 backdating retirement to 31 December 2014. However, the respondent failed to address the claimant's absence from work and was therefore liable for wages up to 11 March 2015.
Remedies due
Wages to 11 March 2015 and leave for the last year, less terminal dues already paid
The respondent failed to address the claimant's absence, so wages were due up to 11 March 2015 at the gross wage of Ksh.14,578.00, amounting to Ksh.34,502.00. Without work records showing leave taken, 21 days' leave pay of Ksh.10,204.60 was awarded, less the Ksh.8,867.00 already paid.
Legal principles established
#- Each fixed term contract constitutes a distinct employment relationship; an unwritten continuation on the same terms is governed by section 8 of the Employment Act
- A claim based on a contract of employment must be filed within 3 years under section 90 of the Employment Act
- An employee absent due to sickness must produce a medical certificate; failure justifies summary dismissal
Court orders
#- 1.Claimant to be paid due wages of Ksh.34,502.00 for the period January to 11 March 2015
- 2.Claimant to be paid leave pay due at Ksh.10,204.60
- 3.Less the sum of Ksh.8,867.00 already paid in terminal dues
- 4.Claimant awarded 50% of his costs
- 5.Claimant to be issued with a Certificate of Service in accordance with section 51 of the Employment Act, 2007
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Osieko Amulele v Catholic Diocese of Nakuru [2018] KEELRC 134 (KLR)", Case Analysis (2018). Cause No 96 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/134/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.