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ELRCDismissedCause No. 324(B) of 2015· [2020] KEELRC 1669 (KLR)

Susan Wairimu Karaya v Egerton University (Laikipia University) [2020] KEELRC 1669 (KLR)

Employment and Labour Relations Court of Kenya
6 February 2020
MMM. Mbaru
2,609 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 confirmed that fixed term contracts end legally on their expiry date, so non-renewal is not unfair termination.

What this practically means

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Executive summary

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The claimant, employed by the respondent (a public university under the Education Act) from 9th December 2009 initially as a casual typist, claimed terminal dues following the non-renewal of her fixed term contract ending 28th November 2013. She sought two months' notice pay, annual leave for four years, leave travelling allowance, house allowance for four years, CBA allowances and compensation under section 49 of the Employment Act, alleging the conversion of her employment to short-term fixed term contracts violated the Employment Act, that she was unionised under KUDHEIHA and entitled to CBA terms, and that she was discriminated against. The respondent defended the claim on the basis that the fixed term contracts were lawful and voluntarily accepted, that her wages were consolidated and above the minimum wage plus house allowance under the applicable wage orders, that she took all her leave days, and that the CBA did not apply to her category of employees. The court held that fixed term contracts are lawful under section 10(3)(c) of the Employment Act read with Articles 27 and 41 of the Constitution and end on their own terms upon expiry. The claimant was found not to be unionised, so the KUDHEIHA CBA did not apply. Under section 90 of the Act, claims were limited to three years before filing. The claimant had enjoyed 9 ½ leave days more than her entitlement, and her consolidated wage exceeded the minimum wage plus house allowance. Leave travelling allowance was held not to be a legal requirement. The entire claim was dismissed with 50% costs to the respondent.

Key legal issues

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01

Lawfulness of conversion to fixed term contracts

Holding

The conversion from casual terms to fixed term contracts was lawful and did not amount to unfair labour practice or discrimination

Reasoning

The court held that section 10 of the Employment Act, read with Articles 41 and 27 of the Constitution, permits an employer to issue a written fixed term contract. The claimant accepted each contract voluntarily and the contracts expired on their own terms, so there was no unfair treatment or discrimination.

p. 3
02

Applicability of the KUDHEIHA CBA

Holding

The CBA did not apply to the claimant as she was not unionised and no union dues or agency fee were deducted

Reasoning

The court examined the pay slips and found only one deduction of Ksh.150 in January 2013, which was not challenged as evidence of unionisation. The respondent's evidence that the claimant fell in a separate category of employees was unchallenged, so the CBA terms were inapplicable.

p. 4
03

Limitation of claims to three years

Holding

Claims accruing beyond 10th November 2012 (three years before filing) were time-barred under section 90 of the Employment Act

Reasoning

The memorandum of claim was filed on 9th November 2015. Section 90 limits claims to three years preceding filing, so only dues under the subsisting contracts from 1st July 2012 onwards were assessable.

p. 4
04

Annual leave entitlement

Holding

The claimant was allocated generous leave of 2 ½ days per month worked and took more leave than she was due, so no leave pay is owing

Reasoning

The court assessed leave taken against leave due under each contract: 7 ½ days due in the first contract, 30 days in the second, 3 in the last, and found the claimant cumulatively enjoyed 9 ½ days beyond entitlement, with work records demonstrating the leave taken.

p. 4

Legal principles established

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  • A fixed term contract ends on its own terms upon expiry and is a lawful and legitimate mode of employment under section 10(3)(c) of the Employment Act, 2007
  • Where there is a dispute over terms of a written contract of service, the court is bound by the agreed terms unless there is evidence to the contrary
  • Terminal dues claims under the Employment Act are limited to three years preceding the filing of the claim by section 90 of the Act

Court orders

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  1. 1.The claim is dismissed in its entirety
  2. 2.The claimant shall meet 50% of the costs due to the respondent

Authorities

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Legislation

  • Employment Act, 2007sections 7, 9, 10, 10(3)(c), 28, 37, 41, 49, 90
  • Constitution of Kenya, 2010Articles 27 and 41
  • Education Actnull

Cases cited (3)

  • Bernard Makokha & others versus Centre Star Company Limited
    Cause No.2177 of 2016 (Nairobi)
  • Fatuma Abdi versus Kenya School of Monetary Studies
    [2017] eKLR
  • Narry Philemons Onaya-Odeck versus Technical University of Kenya (Formerly, the Kenya Polytechnic University College)
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for terminal dues and unfair labour practice)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Susan Wairimu Karaya v Egerton University (Laikipia University) [2020] KEELRC 1669 (KLR)", Case Analysis (2020). Cause No. 324(B) of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1669/eng@2020-02-06

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