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ELRCDismissedCause No. 56 of 2018 (consolidating Causes Nos. 55–69 of 2018)· [2019] KEELRC 298 (KLR)

Elema Guyo Elema & 14 others v Jiangxi Zhongmei Engineering Construction Co. Ltd [2019] KEELRC 298 (KLR)

Employment and Labour Relations Court
21 November 2019
5,728 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that workers on a road project were not unfairly dismissed because their jobs legally ended when the project was completed.

What this practically means

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Executive summary

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Fifteen claimants, all formerly engaged on the construction of the Marsabit–Turbi Road project, filed consolidated suits against the respondent contractor alleging wrongful, unprocedural and unfair termination and non-payment of terminal benefits, including pay in lieu of notice, gratuity, 12 months' compensation for unfair termination, underpayment of wages, annual leave dues, house allowance and Sunday overtime, under Sections 41, 43, 44 and 45 of the Employment Act and an alleged Collective Bargaining Agreement. The respondent denied all allegations, contending that its contract with KeNHA ran from April 2011 to April 2014, was extended to 20 April 2015, followed by a defects liability period to 2017; the claimants' contracts automatically lapsed on completion of the project and their separations were mutually agreed, with dues paid and recommendation letters issued. One claimant testified for all claimants; the respondent called no witness. The court found the respondent had proved a valid reason for termination: the project contract ended in April 2015 with a defects liability period to 2017, and the claimants could not remain employed on a road construction project indefinitely. The terminations were therefore not unfair, the contracts having ended by effluxion of time upon completion of the project stages. The claimants also failed to produce pay slips proving the alleged underpayments and other monetary claims. All consolidated claims were dismissed with each party bearing their own costs.

Key legal issues

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01

Validity of the reason for termination

Holding

The Respondent established a valid reason for termination as the project contracts came to an end on completion and effluxion of time

Reasoning

The Respondent showed that its contract with KeNHA ran to April 2015 with a defects liability period to 2017. The Claimants could not remain employed on a road construction project indefinitely; staff were released as works were completed. Under Sections 43 and 45 of the Employment Act the employer must prove a valid and fair reason, and the court found that completion of the project made the staff surplus to requirement, satisfying that burden.

p. 5
02

Fairness of the termination procedure

Holding

The terminations were not unfair because the contracts ended on effluxion of time upon completion of the project stages

Reasoning

The court reasoned that fixed-term/project employment ends when the project ends. None of the Claimants could anticipate working beyond the life of the project or remain employed indefinitely on a road construction project. As the contracts lapsed by effluxion of time and upon completion of the various stages of the project, the terminations were not unfair and no procedural violation arose.

p. 5
03

Proof of underpayment and other monetary claims

Holding

The Claimants failed to prove underpayment, house allowance, overtime and leave dues as they produced no pay slips

Reasoning

The Claimants alleged underpayment of wages, unpaid house allowance, overtime for Sundays worked and untaken annual leave, but failed to attach or produce pay slips or other documentary evidence substantiating those claims. The Respondent denied the allegations and asserted it complied with the minimum wage requirements. In the absence of proof on a balance of probabilities, the monetary claims fell away.

p. 5

Legal principles established

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  • Termination on effluxion of time upon completion of a project, with a valid reason established, is not unfair termination under Sections 43 and 45 of the Employment Act

Court orders

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  1. 1.The consolidated claims are dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44
  • Employment ActSection 45(2)

Cases cited (1)

  • Stephen Kamau Wanderi & Another v Glady Wanjiku Kung'u
    [2006] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (Employment Act claims for 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, "Elema Guyo Elema & 14 others v Jiangxi Zhongmei Engineering Construction Co. Ltd [2019] KEELRC 298 (KLR)", Case Analysis (2019). Cause No. 56 of 2018 (consolidating Causes Nos. 55–69 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/298/eng@2019-11-21

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