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ELRCPartially AllowedCause No 561 of 2017· [2019] KEELRC 1287 (KLR)

James Ambuso Omondi v Mohamed Moulid Shurie & another [2019] KEELRC 1287 (KLR)

Employment and Labour Relations Court
28 June 2019
3,829 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a fixed-term contract simply ends on its expiry date, but the employee still recovered withheld half-salaries, gratuity and leave pay.

What this practically means

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Executive summary

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The claimant, formerly Finance and Administration Manager of the 2nd respondent, was employed in 2011 on a three-year renewable contract renewed in February 2014, lapsing on 30.06.2017. After the 1st respondent was competitively appointed CEO in August 2016, having competed against the claimant, relations soured: the claimant alleged harassment, unilateral administrative actions, compulsory leave directives, two show-cause letters, an office lock-out with 'fundis' and armed security, and interdiction on 28.11.2016 over audit queries. He sued for a permanent injunction, half salaries withheld during interdiction, gratuity, salaries from July 2017, compensation for unfair termination, and Kshs.50 million damages for discrimination and inhuman treatment. The respondents maintained the fixed-term contract lapsed on 30.06.2017 after the claimant declined to attend a 16.06.2017 renewal/disciplinary meeting, asserting the matter was in court. The Court found the discrimination and inhuman treatment claim unproven, the lock-out evidence being inadmissible hearsay from a secretary never called as a witness, and no evidence that the 1st respondent acted unprofessionally, distinguishing Vicky Kemunto Ocharo. Following Amatsi Water Services and Bernard Wanjohi Muriuki, it held the contract lapsed by effluxion of time on 30.06.2017 and no unfair termination arose. The claimant was estopped from challenging the extended interdiction, having invoked sub judice, but was awarded half salaries withheld from 28.11.2016 to 30.06.2017, contractual gratuity, and accrued leave pay, payable by 01.09.2019 with interest thereafter, plus 50% of costs against the 2nd respondent.

Key legal issues

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01

Whether the 1st respondent subjected the claimant to inhuman treatment, harassment, intimidation or discrimination

Holding

Not established; the claimant's evidence of the office lock-out was hearsay and no evidence showed the 1st respondent acted unprofessionally

Reasoning

The claimant's account of being locked out rested on information from his secretary, who was not called as a witness, so the evidence was caught by the rule against hearsay and he did not personally experience the alleged treatment. The Court contrasted Vicky Kemunto Ocharo, where unprofessional conduct by a successful competitor against a colleague justified exceptional relief. Here no material discredited the 1st respondent's testimony that he was performing official duties, so the discrimination and inhuman treatment claim failed on a balance of probability.

p. 4
02

Whether the contract was unfairly terminated or lapsed by effluxion of time

Holding

The three-year renewable contract lapsed on 30.06.2017 by effluxion of the contractual time; no unfair termination

Reasoning

The claimant never complied with the renewal procedure - applying to the CEO who would recommend renewal to the Board - and when invited to discuss renewal on 16.06.2017 he replied that the matter was in court. Following Amatsi Water Services and Bernard Wanjohi Muriuki, a fixed term contract ends on its sunset date unless extended in the stated terms, and the employer need not give reasons for non-renewal. Unfair termination never attached.

p. 4
03

Whether the interdiction beyond two months was unlawful and whether withheld half salaries were payable

Holding

The interdiction period was modified by the parties' mutual conduct given the pending suit, but the claimant is entitled to half salaries withheld from 28.11.2016 to 30.06.2017, plus contractual gratuity and accrued leave

Reasoning

The claimant invoked sub judice when invited to the 16.06.2017 disciplinary hearing, so he was estopped from complaining that interdiction exceeded the two-month policy limit; the interdiction period was modified by mutual conduct until the Court decided the case. However, the 1st respondent conceded in evidence that the claimant was entitled to half salaries for the interdiction period, gratuity as fixed in the contract, and pay for accrued leave days, and the Court awarded these accordingly.

p. 4

Legal principles established

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  • A fixed term contract terminates on its sunset date unless extended in terms stated in the contract, and no unfair termination arises from its lapse
  • An employer has no obligation to give reasons why a fixed-term contract should not be renewed
  • A party who invokes sub judice and elects to have a matter determined by the Court is estopped from later complaining about the suspension of the disciplinary process

Court orders

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  1. 1.The 2nd respondent to pay the claimant half salaries withheld during interdiction period from 28.11.2016 to 30.06.2017
  2. 2.The 2nd respondent to pay the claimant gratuity at contractual rate for the contract period as fixed in the contract of service ending on 30.06.2017
  3. 3.The 2nd respondent to pay the claimant for accrued leave days
  4. 4.Payment to be made by 01.09.2019 failing interest at Court rates from the date of judgment until full payment
  5. 5.The respondents to pay the claimant's 50% of the costs of the suit

Authorities

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Cases cited (4)

  • Vicky Kemunto Ocharo –Versus- The Independent Policing Oversight Authority
    [2018]eKLR
  • Amatsi Water Services Company Limited –Versus- Francis Shire Chahchi
    [2018]eKLR
  • National Water Conservation & Pipeline Corporation –Versus- Jayne Kanini Mwanza
    Civil Appeal No. 178 of 2014 (UR)
  • Bernard Wanjohi Muriuki –Versus- Kirinyaga Water and Sanitation Company Limited & Another
    [2012]eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over a memorandum of claim filed under its employment jurisdiction (particular statute not stated in the judgment)

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, "James Ambuso Omondi v Mohamed Moulid Shurie & another [2019] KEELRC 1287 (KLR)", Case Analysis (2019). Cause No 561 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1287/eng@2019-06-28

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