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ELRCPartially AllowedCause No 716 of 2012· [2020] KEELRC 379 (KLR)

Emily Migwa v Seventh Day Adventist Church Central Kenya Conference (CKC) & another [2020] KEELRC 379 (KLR)

Employment and Labour Relations Court
15 October 2020
OMONESMUS N MAKAU
4,675 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that fixed-term contracts end automatically on expiry with no unfair termination claim, but contract employees still get the same allowances as permanent staff.

What this practically means

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Executive summary

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The Claimant sued the Respondent claiming she was employed as an Accountant from November 2008 until 3rd February 2012 when her services were terminated without notice, valid reason or due process. She sought loss of earnings of Kshs. 2,955,220, twelve months' compensation, unpaid medical expenses of Kshs. 1,495,000, and unpaid allowances under the Respondent's ECD Working Policy, alleging she was permanent but underpaid and discriminated against on grounds of pay and ethnicity. The Respondent denied permanent employment, asserting she was a seasonal reliever engaged on successive fixed term contracts, failed two interviews for the substantive accountant position, and whose last contract expired on 31.1.2012 with terminal dues paid. The court framed three issues: the nature of the contract, whether it was unfairly terminated, and entitlement to remedies. It found the claimant was a fixed term employee, holding that her conduct in applying twice for the advertised post belied permanent employment, and that the employer's failure to produce written contracts did not displace the proof of fixed term engagement. It found the contract lapsed automatically on 31.1.2012 by effluxion of time, so no unfair termination arose. However, it held that fixed term employees are entitled to the same allowances as permanent employees under the ECD Policy and the Employment Act. It awarded leave for 62 days, house allowance at Kshs. 15,000 per month, travelling allowance at Kshs. 5,500 per month, and 75% of medical expenses, totalling Kshs. 1,825,155, but refused compensation for termination, education allowance, February 2012 salary and further service pay. The claimant received costs and interest from the date of filing suit.

Key legal issues

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01

Whether the claimant was a permanent or fixed term employee

Holding

The court found the claimant was a seasonal/fixed term employee, not permanent, despite the employer's failure to produce written contracts

Reasoning

The employer bore the burden of proving fixed term terms under section 10(7) but Rw1 proved on a balance of probability that she was engaged as a reliever under fixed term contracts. Her conduct - applying twice for the advertised accountant position and hoping for future employment - corroborated that she was not permanently employed. Her ethnicity allegation was unsubstantiated against the interview results.

p. 4
02

Whether the contract was unfairly and wrongfully terminated

Holding

No termination occurred; the contract lapsed automatically on 31.1.2012 by effluxion of time

Reasoning

The last one-year contract ran from 1.2.2011 to 31.1.2012. The claimant knew she was serving until a substantive accountant was appointed, competed for the post and failed. The respondent only notified her that she would not continue after expiry. Under section 47(5), the burden of proving unfair termination rests with the employee, and she failed to discharge it.

p. 4
03

Entitlement to allowances under the ECD Working Policy and Employment Act

Holding

All employees, including fixed term employees, were entitled to the allowances; specific awards made for leave, house, travelling and medical allowances

Reasoning

Chapter Y of the ECD Working Policy does not provide superior remuneration for permanent employees, nor does the Employment Act exclude fixed term employees from irreducible minimum terms. Leave of 62 days was awarded; house allowance at Kshs. 15,000 and travelling allowance at Kshs. 5,500 per month as suggested by the employer; medical expenses reimbursed at 75% under Clause Y 15 20 1. Education allowance failed for lack of proof.

p. 5

Legal principles established

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  • Where an employer fails to produce a written contract or written particulars of employment, the burden of proving or disproving an alleged term of employment rests on the employer
  • A fixed term contract lapses automatically by effluxion of time and does not attract remedies for unfair termination
  • Fixed term employees are entitled to the same statutory minimum terms and allowances as permanent employees where the applicable policy does not distinguish between them

Court orders

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  1. 1.Leave: Kshs. 23,100 x 62/30 = Kshs. 47,740
  2. 2.House allowance: Kshs. 15,000 x 32 = Kshs. 480,000
  3. 3.Travelling allowance: Kshs. 5,500 x 32 = Kshs. 176,000
  4. 4.Medical allowance: Kshs. 1,495,220 x 75% = Kshs. 1,121,415
  5. 5.Total award of Kshs. 1,825,155 subject to statutory deduction
  6. 6.Interest at court rates from the date of filing the suit
  7. 7.Claimant awarded costs of the suit

Authorities

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Legislation

  • Employment Actsection 2
  • Employment Actsection 10(3)(c)
  • Employment Actsection 10(7)
  • Employment Actsection 9(2)
  • Employment Actsection 45
  • Employment Actsection 47(5)
  • Employment Actsection 43
  • Employment Actsection 41
  • Employment Actsection 37
  • Employment Actsection 5(3)
  • Employment Actsection 5(4)
  • Employment Actsection 28
  • Employment Actsection 31
  • Labour Institutions Actsection 15(c)
  • Respondent's ECD Working PolicyChapter Y; Clauses Y 20 05, Y20 10, Y25 35, Y25 20, Y 15 20 1
  • Convention No. III - Convention Concerning Discrimination in Respect of Employment and Occupation, 1958 (ILO)Article 1
  • ELRC Procedure RulesRule 28(3)

Cases cited (6)

  • Walter Anuro vs Teachers Service Commission
    [2013] eKLR
  • Evans Kamadi Misango vs. Barclays Bank of Kenya Limited
    [2015] eKLR
  • Paul Ochieng' Agola v Gateway Marine Services Limited
    [2018] eKLR
  • Patrick Asuma v Arm Cement Limited
    [2019] eKLR
  • VMK v CUEA
    [2013] eKLR
  • Emmanuel Musembi Nthambi v Tamar Wire Products Ltd
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Labour Institutions Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Emily Migwa v Seventh Day Adventist Church Central Kenya Conference (CKC) & another [2020] KEELRC 379 (KLR)", Case Analysis (2020). Cause No 716 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/379/eng@2020-10-15

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