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ELRCDismissedCause No. 482 of 2016· [2019] KEELRC 1827 (KLR)

Benson Maiyo v Agricultural Finance Co-operation [2019] KEELRC 1827 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
31 January 2019
MMM. Mbaru
1,851 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that written fixed term contracts govern, so a worker on repeated temporary contracts cannot claim permanent employee benefits or unfair termination.

What this practically means

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Executive summary

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The claimant, employed from 2006 initially as a Watchman and later as a Gardener/Messenger at the respondent's Eldama Ravine Branch, claimed he was wrongfully and unfairly terminated on 31st May 2016 and sought declarations and payment of over Kshs.2.6 million comprising underpayments over 10 years, gratuity, house and transport allowances, leave allowance, NSSF and NHIF dues and three months' notice pay. He contended that successive three-month temporary contracts were unlawful and that the continuous nature of his duties converted him into a permanent employee. The respondent admitted issuing temporary contracts but maintained the claimant worked weekends and public holidays as a reliever and later three days per week as a gardener, with each contract ending and renewal at either party's option; on 31st May 2016 it opted not to renew. It relied on a work attendance register filed on the court's direction showing the claimant was never registered as a full-time employee. The court held that fixed term contracts are a legitimate and lawful mode of employment, that the label assigned to the employment is immaterial where the written contracts clearly show a fixed term, and that payment for only three days per week throughout precluded any expectation of full-time employment. Reliance placed on Fatuma Abdi v Kenya School of Monetary Studies and Margaret A. Ochieng v National Water Conservation & Pipeline Corporation. All claims were found without merit and dismissed with costs to the respondent.

Key legal issues

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01

Whether the claimant, engaged on successive temporary contracts, became a permanent full-time employee

Holding

The claimant remained a casual employee on lawful fixed term contracts; no expectation of full-time employment was created

Reasoning

The court noted the Employment Act allows fixed term employment and section 10(3)(c) requires the contract to state the period. The claimant was issued written contracts clearly spelling out the parties' intention for temporary, fixed-period employment. He was consistently paid only for 3 days per week as stipulated, and the attendance register showed he was not a full-time employee. Even remaining on the premises and making himself available did not alter the contractual terms.

p. 3
02

Whether the claims for underpayments, notice, allowances and statutory dues were payable

Holding

None of the claimed dues were lawfully owing since wages under each contract were fully paid and the contracts lawfully ended without renewal

Reasoning

The court relied on the work records filed on its direction, showing the claimant was not on the full-time attendance register. Having been paid his agreed wages for the 3 days worked each week, nothing remained outstanding at the end of each contract term. The respondent's offer of Ksh.140,605.80 before the labour officer was made in good faith and the claims for terminal dues had no basis.

p. 3

Legal principles established

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  • Fixed term contracts are a legitimate and lawful mode of employment, and the substance of the contract governs regardless of the label assigned to the nature of employment
  • An employee on a fixed term contract has no automatic expectation of renewal merely by remaining available on the employer's premises

Court orders

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  1. 1.Claims dismissed with costs to the respondent

Authorities

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Legislation

  • Employment Act, 2007Section 10(3)(c)

Cases cited (2)

  • Fatuma Abdi versus Kenya School of Monetary Studies
    [2017] eKLR
  • Margaret A. Ochieng versus National Water Conservation and Pipeline Corporation
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute for unfair termination and terminal dues)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Benson Maiyo v Agricultural Finance Co-operation [2019] KEELRC 1827 (KLR)", Case Analysis (2019). Cause No. 482 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1827/eng@2019-01-31

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