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ELRCDismissedEmployment and Labour Relations Cause (Mombasa), Memorandum of Claim dated 31st August 2016, filed 22nd September 2016· [2020] KEELRC 628 (KLR)

Boniface Mwombe Ambulwa v Doshi & Company (Hardware) Limited & another [2020] KEELRC 628 (KLR)

Employment and Labour Relations Court of Kenya
27 July 2020
LNLINNET NDOLO
1,135 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed an employer can decline to renew a fixed term contract without giving reasons, so the worker's dismissal claim failed.

What this practically means

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Executive summary

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The Claimant sued the two Respondents, described as sister companies under the Doshi Group, alleging wrongful and unfair dismissal on 1st July 2016 and refusal to pay terminal dues. He claimed notice pay, house allowance, leave pay, travel allowance, service pay, twelve months' compensation and a certificate of service. The Respondents admitted employing him, first as a casual and later as a contractual employee, but denied continuous employment from 2014 to 2016, asserting he worked only 265 days and that his last fixed term contract lapsed on 30th June 2016 and was not renewed, whereupon he deserted work. The court framed two issues: whether the termination was unlawful, and whether the remedies sought were payable. On the evidence, the Claimant conceded he served on short fixed term contracts after September 2015, and the Respondents produced his contract dated 24th March 2016 running from 1st April to 30th June 2016. Applying the principle in Bernard Wanjohi Muriuki v Kirinyaga Water and Sanitation Company Limited, as affirmed by the Court of Appeal in Amatsi Water Services Company Limited v Francis Shire Chachi, that no reasons beyond effluxion of time are needed to end a fixed term contract, the court held the employment was neither unlawful nor unfairly terminated. House allowance was shown to have been paid; leave pay and travel allowance were unproved; service pay was barred by NSSF membership. The entire claim was dismissed with each party bearing their own costs. Judgment was delivered virtually via Microsoft Teams due to COVID-19 restrictions.

Key legal issues

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01

Whether termination of the Claimant's employment was unlawful

Holding

Not unlawful; the last fixed term contract ran its full term to 30th June 2016 and was simply not renewed

Reasoning

The Claimant conceded he served on short fixed term contracts after September 2015, the last expiring 30th June 2016. The Respondents produced the contract dated 24th March 2016 running to 30th June 2016. The HR Manager confirmed the contract lapsed and was not renewed. Applying settled law on fixed term contracts, the court held no reasons beyond effluxion of time were required, so the dismissal claim failed.

p. 2
02

Whether the Claimant was entitled to the remedies sought

Holding

None of the heads of relief were proved or applicable

Reasoning

House allowance was shown on the contract and payslips to have been paid. Leave pay and travel allowance lacked evidence of accrued dues carried forward across successive fixed term contracts. Service pay was barred by NSSF membership. Compensation and notice pay fell with the finding on termination. The entire claim was dismissed.

p. 3

Legal principles established

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  • An employer is under no obligation to give reasons for non-renewal of a fixed term contract; termination occurs by effluxion of time unless the contract provides otherwise
  • A contributing member of NSSF is not entitled to service pay

Court orders

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  1. 1.The Claimant's entire claim is dismissed
  2. 2.Each party will bear their own costs
  3. 3.Judgment delivered via Microsoft Teams Online Platform due to COVID-19 restrictions; a signed copy to be availed to each party upon payment of court fees

Authorities

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Legislation

  • Employment Actnot specified in the judgment text

Cases cited (2)

  • Bernard Wanjohi Muriuki v Kirinyaga Water and Sanitation Company Limited & another
    [2012] eKLR
  • Amatsi Water Services Company Limited v Francis Shire Chachi
    [2018] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution establishing the Employment and Labour Relations Court; Employment 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, "Boniface Mwombe Ambulwa v Doshi & Company (Hardware) Limited & another [2020] KEELRC 628 (KLR)", Case Analysis (2020). Employment and Labour Relations Cause (Mombasa), Memorandum of Claim dated 31st August 2016, filed 22nd September 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/628/eng@2020-07-27

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