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ELRCDismissedCause No. 8 of 2018 (consolidated with Causes Nos. 9-18 of 2018)· [2019] KEELRC 20 (KLR)

Michael Molu Kosicha & 11 others v Jiangxi Zhongmei Engineering Construction Co. Limited [2019] KEELRC 20 (KLR)

Employment and Labour Relations Court
9 December 2019
NMNzioki wa Makau
4,237 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that road project workers' contracts lawfully ended when the project finished, and their claims failed for lack of evidence.

What this practically means

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Executive summary

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Eleven claimants, each the claimant in consolidated Causes Nos. 8 to 18 of 2018, sued China Wu Yi Limited for wrongful, unprocedural and unfair dismissal arising from their employment on the Marsabit-Turbi Road construction project between 2011 and 2016. Each claimant alleged violations of Sections 41, 43, 44 and 45 of the Employment Act, breach of a Collective Bargaining Agreement signed on 27 July 2012, failure to remit NSSF and NHIF dues, underpayment, unpaid house allowance, untaken annual leave, unpaid Sunday overtime and absence of notice or hearing, and sought declarations plus damages totalling varying sums per claimant. The Respondent denied the claims, contending that the claimants were hired for a fixed-term project contract with KeNHA which, after a one-year extension, ended in April 2015; that separations were mutually agreed with dues paid and recommendation letters issued; and that the claims lacked merit. The Respondent did not appear at trial or file submissions. The court found the claimants' testimony on abrupt dismissal undermined by the recommendation letter issued after the alleged dismissals, noted that no claimant demonstrated work during the defects liability period, and held that the claimants could not remain employed on the project indefinitely. Finding the contracts ended on effluxion of time upon completion of the project, the court held the terminations were not unfair and that the underpayments were unproved for want of pay slips. All claims were dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the dismissals were unfair under Section 45 of the Employment Act

Holding

Termination was not unfair; contracts ended on effluxion of time upon completion of the project

Reasoning

Section 45(2) requires the employer to prove a valid and fair reason and fair procedure. The Respondent demonstrated that the construction contract ran until April 2015 and the Claimants' separations coincided with completion of the project. None of the Claimants demonstrated that they worked during the defects liability period, so none anticipated work beyond the project's life.

p. 4
02

Whether the Claimants proved underpayment and other dues

Holding

Not proved; no pay slips or supporting evidence produced

Reasoning

The Claimants asserted underpayment, unpaid house allowance, leave dues and overtime but produced no pay slips or documentary evidence substantiating the amounts claimed. Their testimony on the alleged abrupt dismissal was also undermined by the recommendation letter issued by the Respondent days after the alleged dismissal.

p. 4

Legal principles established

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  • Employment on a fixed-term road construction project ends on effluxion of time upon completion of the project, and such termination is not unfair where the employee could not anticipate work beyond the project's life

Court orders

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  1. 1.The claims before the court are dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSections 41, 43, 44 and 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act

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, "Michael Molu Kosicha & 11 others v Jiangxi Zhongmei Engineering Construction Co. Limited [2019] KEELRC 20 (KLR)", Case Analysis (2019). Cause No. 8 of 2018 (consolidated with Causes Nos. 9-18 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/20/eng@2019-12-09

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