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ELRCDismissedCause No. 74 of 2018· [2019] KEELRC 2274 (KLR)

Stephen Kirwa Melly v Mogogosiek Tea Factory Co. Ltd [2019] KEELRC 2274 (KLR)

Employment and Labour Relations Court of Kenya
1 February 2019
DMD. K. Njagi Marete
1,569 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 ruled that a seasonal contract that simply expired is not unfair dismissal, and the employee gets nothing.

What this practically means

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Executive summary

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This consolidated lead cause (with ELRC Causes Nos. 73 and 75 to 90 of 2018) was filed by memorandum of claim dated 4th September 2018. The claimant, employed by the respondent in the packaging section from about 13th May 1994 at a gross salary of Kshs.20,157.20, alleged wrongful and unlawful dismissal in April 2016 without payment of terminal benefits. He sought Kshs.1,148,960.4 comprising one month's notice pay, unpaid leave for 22 years, gratuity/service pay and 12 months' compensation under section 15 of the Labour Institutions Act, plus general damages for violation of constitutional rights, interest, a certificate of service and reinstatement, alleging breaches of sections 41(1), 44(4), 45(2)(a) and 4(b) of the Employment Act, 2007. The respondent denied the claim, asserting the claimant was engaged on intermittent seasonal contracts renewable on mutual agreement under clause 22 of the CBA, and that his contract dated 1st February 2016 lapsed by effluxion of time. The court framed three issues: wrongfulness of termination, entitlement to relief, and costs. Relying on section 47(5) of the Employment Act and authorities on fixed term contracts, the court held the claimant failed to discharge his burden of proving unfair termination, finding the contract lapsed naturally by effluxion of time. The claim was dismissed with costs to the respondent on 1st February 2019.

Key legal issues

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01

Whether termination of the claimant's employment was wrongful, unfair and unlawful

Holding

There was no unlawful termination; the claimant was engaged on a seasonal/fixed term contract which lapsed by effluxion of time, and any termination was lawful.

Reasoning

The claimant bore the burden under section 47(5) of the Employment Act, 2007 to prove unfair termination. The respondent showed the claimant was engaged on intermittent seasonal contracts renewable on mutual agreement under clause 22 of the CBA, and the contract dated 1st February 2016 ended by effluxion of time. The court adopted authorities on fixed term contracts and found the respondent's evidence overwhelming.

p. 3
02

Whether the claimant is entitled to the relief sought

Holding

The claimant is not entitled to any relief having failed to establish unlawful termination.

Reasoning

All heads of relief - notice pay, leave, gratuity, compensation, damages, certificate of service and reinstatement - were premised on a finding of unlawful termination. Since the court found no unlawful termination, the entitlement fell away and the entire claim was dismissed with costs.

p. 3

Legal principles established

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  • The burden of proving unfair termination or wrongful dismissal rests on the employee under section 47(5) of the Employment Act.
  • A fixed term contract terminates automatically on expiry of its term and such termination is not a dismissal by the employer.

Court orders

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  1. 1.The claim is dismissed.
  2. 2.Costs of the cause awarded to the respondent.

Authorities

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Legislation

  • Employment Act, 2007section 41(1)
  • Employment Act, 2007section 44(4)
  • Employment Act, 2007section 45(2)(a)
  • Employment Act, 2007section 4(b)
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 10
  • Labour Institutions Actsection 15

Cases cited (3)

  • Samuel Chacha Mwita v Kenya Medical Research Institute
    [2014] eKLR
  • Ruth Gathoni Ngotho Kariuki vs. Presbyterian Church of East Africa and Presbyterian Foundation
    Industrial Cause No. 509 of 2010
  • Joseah Kipkorir Langat vs. Kapkatet Tea Factory Company Ltd
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007 and Labour Institutions Act)

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, "Stephen Kirwa Melly v Mogogosiek Tea Factory Co. Ltd [2019] KEELRC 2274 (KLR)", Case Analysis (2019). Cause No. 74 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2274/eng@2019-02-01

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