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ELRCPartially AllowedCause No. 257 of 2013· [2018] KEELRC 1267 (KLR)

Silfanus Shamwata Muchalwa v Garbage.Com Limited [2018] KEELRC 1267 (KLR)

Employment and Labour Relations Court
30 July 2018
HWHellen S. Wasilwa
832 words in judgment
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The bottom line

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A Kenyan court ruled that a fixed-term contract ends on its expiry date, but the employee still won unpaid leave pay and house allowance.

What this practically means

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Executive summary

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The Claimant, appearing in person, filed this cause on 26 February 2013 claiming wrongful and unfair termination of his services by the Respondent in August 2012 and non-payment of terminal benefits, seeking one month's salary in lieu of notice, leave pay for 4 years, severance pay and house allowance totalling Kshs. 252,280. The Respondent, through Njugi B.G & Company Advocates, filed a Memorandum of Response asserting that the Claimant's contract ran from 1 July 2011 to 30 June 2012, was contingent on the Respondent's contract with JKUAT Karen, and expired lawfully when that contract ended, with the Claimant entitled to only 1 (or 3) leave days. The Respondent called one witness who confirmed the employment but could not state when it began and conceded the JKUAT Karen contract was not before the court. Justice Hellen S. Wasilwa found from payslips dating back to May 2009 and NSSF remittances from January 2010 to May 2012 that the Claimant was employed well before 2011, initially on permanent and pensionable terms. However, having knowingly signed the contract dated 1 July 2011 converting his terms to a fixed term expiring 30 June 2012, the contract ended by effluxion of time and the claim of unlawful termination failed. The court awarded only leave pay for 3 years (Kshs. 21,000) and house allowance at 15% for 36 months (Kshs. 37,800), totalling Kshs. 58,800, with costs and interest from the date of judgment. The claim was therefore partially allowed.

Key legal issues

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01

Date of commencement of employment

Holding

The Claimant was employed before 2011, as evidenced by payslips dating back to May 2009 and NSSF remittances from January 2010

Reasoning

The court examined the Claimant's documents including payslips from May 2009 running to 2012, and an NSSF statement showing continuous remittances by the Respondent from January 2010 to May 2012. The Respondent's witness conceded the Claimant was always issued contract letters and could not confirm the employment start date, undermining the Respondent's assertion of a 2011 commencement.

p. 2
02

Nature of termination

Holding

The contract dated 1.7.2011 which the Claimant knowingly signed converted his permanent terms to contract terms and expired on 30th June 2012; there was no unlawful termination

Reasoning

Although the Claimant was originally employed on permanent and pensionable terms, he signed the 1.7.2011 contract changing his terms to a fixed term running to 30th June 2012. The court found the contract was not tied to the JKUAT Karen contract, but it nevertheless ended by effluxion of time, defeating the claim for wrongful termination and notice pay.

p. 2
03

Entitlement to terminal benefits

Holding

The Claimant is entitled to leave pay for 3 years (Kshs. 21,000) and house allowance for 3 years at 15% of salary (Kshs. 37,800), totaling Kshs. 58,800

Reasoning

Having found the contract expired by effluxion of time, the court held the Claimant's only entitlement was payment of house allowance and leave pay as pleaded. Leave was computed at 21 days per year for 3 years and house allowance at 15% of the Kshs. 7,000 monthly salary for 36 months.

p. 2

Legal principles established

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  • A fixed-term contract ends by effluxion of time, and termination does not arise where the contract expires on its own terms
  • Payslips and NSSF statements evidencing continuous remittances prove the existence and duration of an employment relationship

Court orders

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  1. 1.Payment of leave pay for 3 years of Kshs. 21,000
  2. 2.Payment of house allowance for 3 years of Kshs. 37,800
  3. 3.Total award of Kshs. 58,800 to the Claimant
  4. 4.Costs of the suit to the Claimant plus interest at Court rates from the date of Judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment and Labour Relations Court Act); claim for wrongful and unfair termination and terminal benefits

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Silfanus Shamwata Muchalwa v Garbage.Com Limited [2018] KEELRC 1267 (KLR)", Case Analysis (2018). Cause No. 257 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1267/eng@2018-07-30

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