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ELRCDismissedNot stated in the judgment· [2019] KEELRC 751 (KLR)

Dickson Otieno Obiny Oloo v Riley Falcon Security Services [2019] KEELRC 751 (KLR)

Employment and Labour Relations Court
23 September 2019
HWHellen Wasilwa
2,238 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed an unfair termination claim because the employee's fixed-term contract had simply expired and he refused to sign a renewal.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a driver from 5th March 2009, sought compensation for unfair and unlawful termination, praying for reinstatement or, alternatively, notice pay, pay for 22 days worked, pro-rata and accrued leave, overtime for 4,608 hours, gratuity for 7 years and maximum compensation for loss of employment, totalling Kshs. 3,820,556. He alleged summary dismissal on 16th April 2016 without notice or hearing, in breach of Sections 41, 43 and 45 of the Employment Act. The Respondent admitted the engagement but contended the employment was contractual, that the Claimant was summarily dismissed in 2013 but reinstated on a one-year contract, and that he later refused to sign renewal contracts, so the relationship ended by effluxion of time rather than termination. The Respondent relied on authorities on the employee's burden of proof under Section 47(5), the distinction between wrongful dismissal and unfair termination, reinstatement as a last resort, and gratuity where the employee was an NSSF member. The Claimant filed no submissions. The court traced the employment history, found the one-year contract had lapsed and the Claimant declined to sign a further contract, and held there was no unfair termination. The claim was dismissed with no order as to costs on 23rd September 2019.

Key legal issues

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01

Whether the Claimant was terminated or whether his contract lapsed

Holding

The court held the one-year contract expired and the Claimant refused to sign a renewal, so the contract was terminated by affluxion of time, not by unfair termination

Reasoning

The court traced the employment history: summary dismissal in 2013, reinstatement in December 2013 on a one-year contract, continued work after expiry, and refusal to sign fresh contracts in 2015 and 2016. Since the Claimant did not deny the refusal to sign new contracts, the letter of 16 April 2016 merely recorded the end of a lapsed contractual relationship rather than a termination requiring procedure under Sections 41, 43 and 45.

p. 4
02

Whether the Claimant discharged the burden of proving unfair termination

Holding

The court found the Claimant failed to prove unfair termination, the burden being on the employee under Section 47(5)

Reasoning

Relying on the Respondent's submissions and the Court of Appeal authority in Chengo Kitsao Chengo, the court applied the principle that the employee bears the burden of proving unfairness or wrongful dismissal. Having found no termination but mere expiry of contract, the Claimant's claim could not stand, and no submissions were filed by the Claimant to assist the court.

p. 3

Legal principles established

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  • Where a fixed-term contract lapses and the employee refuses to sign a renewal, the employment ends by effluxion of time and no claim for unfair termination arises
  • The burden of proving unfair or wrongful dismissal lies on the employee

Court orders

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  1. 1.The Claim is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 45(3)
  • Employment ActSection 47(5)
  • Employment ActSection 74(1)(f)
  • Employment Act, 2007Sections 41, 43 and 45
  • Labour Institution Act, 2007Section 15(c)

Cases cited (4)

  • Chengo Kitsao Chengo Vs Umoja Rubber Products Ltd
    (2017) eKLR
  • Nation Media Group Limited Vs Onesmus Kilonzo
    (2017) eKLR
  • Kenya Airways Ltd Vs Aviation & Allied Workers Union Kenya & 3 Others
    (2014) eKLR
  • Wells Fargo Limited Vs Julius Ihomba Gatete
    (2018) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 47(5), 74(1)(f) invoked)

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, "Dickson Otieno Obiny Oloo v Riley Falcon Security Services [2019] KEELRC 751 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/751/eng@2019-09-23

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