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ELRCPartially AllowedCause (not specified in judgment; claim dated 21st March 2013)· [2018] KEELRC 432 (KLR)

Stephen M. Kitheka v Kevita International Limited [2018] KEELRC 432 (KLR)

Employment and Labour Relations Court
20 December 2018
MOMaureen Onyango
2,771 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled a fixed term contract simply ends on its expiry date; the worker got only leave pay and a certificate of service.

What this practically means

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Executive summary

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The claimant, employed as a driver on a three-month fixed term contract from 23rd October 2012 at a monthly salary of Kshs.17,000, claimed compensation for wrongful, unfair and/or unlawful termination and various terminal dues after he was told on 1st February 2013 not to report to work. The respondent admitted the employment but asserted that the contract simply lapsed by effluxion of time on 23rd January 2013 and was not renewed, and that the claimant was not assigned any duties thereafter. The court framed three issues: whether the contract was renewed, whether termination was unfair, and whether the claimant was entitled to the orders sought. Relying on Rajab Barasa & 4 Others v Kenya Meat Commission, the court held that a fixed term contract does not renew automatically even where a renewal clause exists. The claimant, having served only one term and having admitted in cross-examination that he did not ask for renewal, had no legitimate expectation of renewal. As there was no termination of employment but only non-renewal, the claims for notice pay, February 2013 salary, twelve months' compensation for unfair termination, gratuity, house allowance and payment for the unexpired balance of the contract all failed. The court awarded only prorated annual leave of 5.25 days amounting to Kshs.3,433.50 and ordered issuance of a certificate of service under Section 51 of the Employment Act. The rest of the claim was dismissed with no orders as to costs. Judgment was delivered at Nairobi on 20th December 2018 by Maureen Onyango, Judge.

Key legal issues

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01

Whether the claimant's fixed term contract was renewed

Holding

The contract was not renewed; the claimant had no legitimate expectation of renewal after serving only one three-month term and never asked for renewal

Reasoning

The claimant admitted in cross-examination that he knew his contract was for three months, that renewal was based on performance, and that he did not ask for renewal when he returned from safari. RW1 testified the claimant was not assigned duties after the contract expired and was only paid his salary on 1st February 2013. Following Rajab Barasa, a fixed term contract does not renew automatically.

p. 4
02

Whether termination was unfair

Holding

There was no termination of employment; the contract lapsed by effluxion of time, so the claim for compensation for unfair termination fails

Reasoning

RW1 testified that the claimant's employment was not terminated but the contract was simply not renewed. Since the contract had an ascertained expiry date and was not renewed, the protections of Section 45(2) of the Employment Act against unfair termination were not engaged. The claimant was therefore not entitled to notice pay, February salary or 12 months' compensation.

p. 4
03

Whether the claimant is entitled to accrued leave and a certificate of service

Holding

The claimant is entitled only to prorated annual leave at 1.75 days per month (5.25 days) and a certificate of service under Section 51 of the Employment Act

Reasoning

Leave is payable on a prorata basis for the period actually worked despite the respondent's submission that leave accrues only after 12 months. A certificate of service is a statutory entitlement under Section 51 of the Employment Act. All other heads of claim were rejected.

p. 4

Legal principles established

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  • A fixed term contract will not be renewed automatically even where there exists a clause allowing for renewal
  • An employee on a fixed term contract with an ascertained expiry date is not entitled to notice of termination where the contract simply lapses

Court orders

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  1. 1.Pay in lieu of leave earned but not taken (5.25 days) Kshs.3,433.50
  2. 2.Respondent to issue the claimant with certificate of service
  3. 3.The rest of the claim is dismissed
  4. 4.There shall be no orders for costs

Authorities

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Legislation

  • Employment Act 2007Section 10(1), (3)(a),(b),(c)
  • Employment Act 2007Section 31(1)
  • Employment Act 2007Section 45(2)
  • Employment Act 2007Section 28
  • Employment Act 2007Section 35(6)
  • Employment Act 2007Section 51
  • Employment Act 2007Section 9

Cases cited (5)

  • Charles Onchoke v Kisii University
    Cause No. 24 of 2017 [2018] eKLR
  • George Onyango vs The Board of Directors of Numerical Machining Complex Limited & Others
    Industrial Court Petition No. 35 of 2012 [2014] eKLR
  • Margaret A. Ochieng v National Water Conservation and Pipeline Corporation
    [2014] eKLR
  • Bernard Wanjohi Muriuki v. Kirinyaga Water and Sanitation Company Limited & Others
    Industrial Court Cause No. 1541 of 2010
  • Rajab Barasa & 4 Others v. Kenya Meat Commission
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and the Labour Relations Act (first-instance employment cause)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Stephen M. Kitheka v Kevita International Limited [2018] KEELRC 432 (KLR)", Case Analysis (2018). Cause (not specified in judgment; claim dated 21st March 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/432/eng@2018-12-20

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