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ELRCDismissed· [2019] KEELRC 180 (KLR)

Martin Kuria Mwai v Shree Logic Management Consultants Limited [2019] KEELRC 180 (KLR)

Employment and Labour Relations Court
10 December 2019
NMNzioki wa Makau
1,635 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that when a fixed term contract simply expires, that is not unfair termination, and you cannot force renewal.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a merchandiser on successive fixed term contracts from January 2014 to 30 June 2017, sued for damages for alleged illegal, unfair and unlawful termination and for refusal to pay terminal dues, claiming notice pay, twelve months' compensation, unpaid leave, underpayment, severance pay, transport allowances and a certificate of service. The Respondent admitted the fixed term engagements but averred that the final contract simply lapsed on 30 June 2017 by effluxion of time with no provision for automatic renewal; that the Claimant's salary of Kshs. 16,000 exceeded the statutory minimum wage; and that no terminal dues were payable absent a termination. The Claimant invoked the doctrine of legitimate expectation, citing Ruth Gathoni Ngotho Kariuki and Pravin Bowry, while the Respondent cited authorities holding that fixed term contracts carry no expectation of renewal. The court held that the contract ran out and was not renewed, and that extending the doctrine of legitimate expectation to ordinary fixed term contracts would stretch it too far; there was no fault in the non-renewal and no termination occurred. On underpayment, the court applied Section 90 of the Employment Act limiting the continuing-injury claim to the twelve months preceding suit, and found the Kshs. 16,000 monthly wage was not below the applicable minimum of Kshs. 15,434.70. The suit was dismissed with each party bearing their own costs. The judge also admonished counsel for improper citation of authorities.

Key legal issues

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01

Whether non-renewal of a fixed term contract constitutes unfair termination

Holding

No. The contract ran out and was not renewed; there was no termination, much less an unfair one, and the doctrine of legitimate expectation does not compel renewal.

Reasoning

The Claimant relied on legitimate expectation to argue he was entitled to renewal. The court held that applying the doctrine to ordinary fixed term contracts would stretch it too far, since every party to a finite contract would then insist on renewal. The Claimant was merely optimistic about renewal; there was no fault in the non-renewal, and the claim failed in its entirety.

p. 3
02

Whether the Claimant was underpaid contrary to the Regulation of Wages Orders

Holding

No. His monthly salary of Kshs. 16,000 was above the applicable minimum wage of Kshs. 15,434.70 for 'other areas'.

Reasoning

Underpayment is a continuing injury, so under Section 90 of the Employment Act only the portion of the claim within 12 months (July 2016 to June 2017) was actionable. The Claimant proved he earned Kshs. 16,000 monthly, which, though not 'way above' the minimum wage as the Respondent asserted, was not below it. The underpayment claim therefore failed.

p. 3

Legal principles established

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  • Applying the doctrine of legitimate expectation to demand renewal of every expiring fixed term contract would stretch the doctrine too far
  • Expiry of a fixed term contract by effluxion of time does not amount to unfair or unlawful termination

Court orders

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  1. 1.Dismissal of the Claimant's suit as it has no merit
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 43(1)
  • Employment Act, 2007Section 44
  • Employment Act, 2007Section 45(1)
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 10(3)(c)
  • Employment Act, 2007Section 35
  • Employment Act, 2007Section 90
  • Regulation of Wages (General) (Amendment) Order, 2013Legal Notice No. 197 of 2013
  • Regulation of Wages (General) (Amendment) Order, 2015Legal Notice No. 117 of 2015

Cases cited (10)

  • Ruth Gathoni Ngotho Kariuki v The Presbytery Church of East Africa & Another
    [2012] eKLR
  • Trocaire v Catherine Wambui Karuno
    [2018] eKLR
  • Pravin Bowry v Ethics and Anti-Corruption Commission
    [2013] eKLR
  • George Onyango v the Board of Directors of Numerical Machining Limited & Others
    [2014] eKLR
  • Margaret A. Ochieng v National Water Conservation and Pipeline Corporation
    [2014] eKLR
  • Bernard Wanjohi Muriuki v Kirinyaga Water and Sanitation Company Limited & Another
    [2012] eKLR
  • National Water Conservation & Pipeline Corporation v Jayne Kanini Mwanza
    [2014] eKLR
  • Rajab Barasa & 4 Others v Kenya Meat Commission
    [2016] eKLR
  • Stephen M. Kitheka v Kevita International Limited
    [2018] eKLR
  • D.K. Marete v Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Martin Kuria Mwai v Shree Logic Management Consultants Limited [2019] KEELRC 180 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/180/eng@2019-12-10

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