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ELRCDismissedNot stated in the judgment (ELRC cause; referenced authorities suggest Cause number not reproduced)· [2021] KEELRC 601 (KLR)

Andrew Mwangi Wachira v Egerton University, Currently Laikipia University [2021] KEELRC 601 (KLR)

Employment and Labour Relations Court
2 November 2021
2,080 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court ruled that a fixed-term contract that simply expires is not unfair termination, and wage claims older than three years are time-barred.

What this practically means

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Executive summary

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The claimant sued the respondent alleging unfair termination and unfair contractual services. He claimed he was employed in September 2007 as a cook at Kshs 160 per day, worked for five years without leave, and that in June 2012 the respondent unilaterally converted his employment to a three-month fixed term contract at Kshs 10,178 monthly, removing benefits and paying him less than colleagues - which he alleged was discriminatory. He sought reinstatement or, alternatively, notice pay, wage underpayments of Kshs 1,176,780, leave and travelling allowance, and gratuity. The respondent denied employing him in 2007, asserting he was engaged as a casual in September 2011 and later on a three-month fixed term contract that expired by effluxion of time; it also raised a preliminary objection that the suit, filed on 9th November 2015, was statute barred under section 90 of the Employment Act. The court first held the claim was filed within three years of the contract's expiry, so the preliminary objection failed. It then held that the claimant, having signed the fixed term contract which expired on 28th November 2012 and was not renewed, could not claim unfair termination or redundancy, the contract having ended by effluxion of time. The underpayment claim for the period before 2012 was found time barred and the court declined to examine its merits. The claim was dismissed in its entirety with no order as to costs.

Key legal issues

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01

Limitation under section 90 of the Employment Act

Holding

The claim filed on 9th November 2015 was within the three-year period because the contract expired on 28th November 2012, but the underpayment claims for the period before 2012 were time barred.

Reasoning

The court took the date the contract expired (28th November 2012, per the memorandum of claim) as the accrual of the cause of action. Filed on 9th November 2015, the suit fell within the three-year window of section 90. However, the wage underpayment claim related to the period before 2012, more than three years before filing, and was therefore barred, with the court declining to examine its merits.

p. 3
02

Expiry of a fixed term contract versus unfair termination

Holding

The claimant signed a three-month fixed term contract which expired on 28th November 2012 and was not renewed; this was termination by effluxion of time, not unfair termination or redundancy.

Reasoning

The claimant admitted on cross-examination that he signed the fixed term contract, which ended in November 2012. The court held that non-renewal of a contract whose end was clearly determinable cannot found a claim of unfair termination or bad-faith redundancy, and the claimant's signature bound him to the agreed terms.

p. 3
03

Claims for underpayments, leave and gratuity

Holding

The underpayment claim for the pre-2012 period was time barred; the remaining claims fell with the dismissal of the claim as unmerited.

Reasoning

Because the wage underpayment claim related to a period more than three years before filing, the court found it statute barred and declined to delve into its merits. The leave, leave travelling allowance, notice pay and gratuity claims were premised on the termination and underpayment claims, and with those failing, the whole claim was dismissed with no order as to costs.

p. 3

Legal principles established

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  • A fixed term contract that expires by effluxion of time and is not renewed is not an unfair termination and gives rise to no claim of termination or redundancy.
  • An employment claim filed within three years of the expiry of the contract is not time barred under section 90 of the Employment Act.
  • Claims for underpayment of wages accruing more than three years before filing are statute barred under section 90 of the Employment Act.

Court orders

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  1. 1.The claim is dismissed with no order as to costs

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 10(5)
  • Government general wage Order / Regulation of Wages (General) Order (referred to as Government general wage Order)wage rates for waiter/cook

Cases cited (2)

  • Susan Wairimu Karaya V Laikipia University
    Nakuru ELRC Cause Number 324(B) of 2015 (UR)
  • Fatuma Abdi v Kenya School of Monetary Studies
    [2007] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (section 90 invoked on limitation)

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, "Andrew Mwangi Wachira v Egerton University, Currently Laikipia University [2021] KEELRC 601 (KLR)", Case Analysis (2021). Not stated in the judgment (ELRC cause; referenced authorities suggest Cause number not reproduced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/601/eng@2021-11-02

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