Stanley Kiptanui Bii v Catholic Diocese of Nakuru [2020] KEELRC 1775 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Nature of the employment relationship - whether continuous employment under the 1998 letter of appointment or fixed term contracts
The claimant's employment changed fundamentally upon signing the fixed term contract commencing 1st January 2005; he became bound by those terms and cannot claim continuous employment under the 1998 letter of appointment. Claims based on the 1998 terms are time barred.
The court held that section 10 of the Employment Act allows written contracts and section 13 allows variation by mutual agreement. The claimant signed and consented to the term contracts which were fundamentally different from the 1998 letter. He was bound by their terms, and any grievance about the change should have been raised under the limitation provisions of section 90. Fixed term contracting is lawful and section 37 applies only to verbal and casual employment.
Whether employment ended on 31st August 2015 (respondent's position) or 26th October 2015 (claimant's position)
Since the respondent filed no written contract covering the period after the contract ending 30th September 2014, the claimant's claim for salary for September and October 2015 is unchallenged; he worked until 26th October 2015.
The respondent did not file notice of contract end. The claimant filed handing over notes signed on 26th October 2015. Without any written contract filed under section 10(7) of the Act covering the period after expiry of the contract ending 30th September 2014, the claims for that period stand unchallenged, entitling the claimant to two months' salary at Ksh.32,760.80 per month.
Annual leave for 2014/2015
The claim for annual leave is justified; the claimant is awarded 51 days' leave pay of Ksh.48,312 under section 28 of the Act.
The claimant took his last annual leave in November/December 2013. With no work records or written contract covering the 2014/2015 period to contradict the claim, the court computed 30 days under the contract ending 30th September 2014 and 21 days for the employment ending 26th October 2015, based on basic pay of Ksh.28,419.
Deduction for continued occupation of the respondent's residence
The house allowance benefit of Ksh.208,368 for 48 months of continued occupation must be deducted from the dues, under section 19 of the Employment Act.
The claimant remained in the respondent's residence and retained its property after employment ended. Since his wage was all-inclusive with a house allowance of Ksh.4,341, the court treated the value of continued occupation for 48 months up to the hearing date as an overpayment deductible under section 19 of the Act.
Legal principles established
#- Transfer of an employee between stations, departments or places of work is the prerogative of the employer
- Issuance of fixed term contracts is a lawful and legitimate mode of employment; section 37 of the Employment Act applies to verbal and casual employment, not written contracts under section 10
- A fixed term contract terminates on its sunset date unless extended in terms stated in the contract; a court cannot rewrite freely negotiated contract terms
- An employee who consents to and signs a fixed term contract is bound by its terms and cannot rely on the terms of a previous appointment letter
Court orders
#- 1.Salary due for September and October 2015 at Ksh.65,520.00
- 2.Payment in lieu of taking leave at Ksh.48,312.00
- 3.Payments (a) and (b) to be paid less Ksh.208,365.00 owing to the respondent for failure to vacate the allocated residence, in accordance with section 19 of the Employment Act, 2007
- 4.The claimant shall clear with the respondent and hand over all property belonging to the respondent in his possession
- 5.A certificate of service shall issue in accordance with section 51 of the Employment Act, 2007
- 6.Each party shall bear own costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court under Article 162(2) of the Constitution (employment cause filed under the Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stanley Kiptanui Bii v Catholic Diocese of Nakuru [2020] KEELRC 1775 (KLR)", Case Analysis (2020). Cause No. 372 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1775/eng@2020-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.