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ELRCDismissedNot stated in the judgment text· [2021] KEELRC 621 (KLR)

Vincent Alusi Opiyo v Kenya Power & Lighting Company Limited; Kenya Electrical Trades & Allied Workers’ Union (KEWAWU) (Interested Party) [2021] KEELRC 621 (KLR)

Employment and Labour Relations Court
29 October 2021
BOBYRAM ONGAYA
2,378 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that a fixed-term contract worker cannot claim permanent employment or late reinstatement when the employer simply declines to renew the contract.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent initially as a casual labourer from 2000 to 2009 and thereafter on renewable three-month contracts, sought a declaration of permanent employment, monthly salary from April 2014, and reinstatement following termination by a letter dated 04.08.2014 titled 'Non Renewal of 3 Months Contract'. The interested party, a trade union, supported the claim. The respondent contended that the claimant had been arrested and charged with corruption offences arising in the course of his duties, that the last fixed-term contract dated 01.07.2014 had lapsed or was terminable by one month's notice under its clause 6, and that it had no duty to renew. The court found the claimant bound by his pleadings and cross-examination to the existence of the 01.07.2014 contract, and held that the termination, with one month's pay in lieu of notice, was consistent with the contractual termination clause and therefore not unfair. The criminal proceedings related to the respondent's interests, and the termination flowed from the contract, not the disciplinary process. Reinstatement was barred by the three-year statutory limit in Section 12 of the Employment and Labour Relations Court Act, following Sotik Highlands Tea Estates, and payback would amount to unjust enrichment. The leave claim failed as unproven special damages. The parties' failure to follow the CBA dispute-resolution machinery led the court to order each party to bear its own costs. The statement of claim was dismissed in its entirety.

Key legal issues

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01

Renewal of the fixed-term contract

Holding

The contract of 01.07.2014 subsisted as the last contract; the claimant was bound by his pleading and cross-examination

Reasoning

The respondent exhibited a temporary employment letter dated 01.07.2014. The claimant's evidence that he did not see that contract contradicted his pleading of serving on three-month contracts to 2014 and his admission of receiving another contract on 01.07.2014. Parties are bound by their contractual intention. His alleged confirmation in permanent service was unsupported by pleading or documentary proof.

p. 2
02

Fairness of termination

Holding

Termination was not unfair; it flowed from the contractual termination clause, not the disciplinary proceedings

Reasoning

The contract of 01.07.2014 allowed termination by one month's notice or pay in lieu, which was paid. The criminal proceedings related to the respondent's interests, and in any event the termination flowed from the contractual clause, not the disciplinary process. Had the contract not been renewed, it would have lapsed on 30.09.2014 during the contractual suspension under clause 29(a) of the CBA.

p. 2
03

Reinstatement and payback

Holding

Reinstatement barred by the three-year statutory limit; payback would amount to unjust enrichment

Reasoning

Relying on the Court of Appeal authority in Sotik Highlands Tea Estates, the statutory three-year window for reinstatement had lapsed. Further, the term contract would have lapsed during the unpaid contractual suspension, so there was no basis to impose reinstatement or pay for a period not served.

p. 3
04

Leave claim

Holding

Leave claim failed

Reasoning

The leave claim for 21 days from 2001 was inconsistent with casual service from 2000 to 2009 and, being special damages, was not specifically pleaded, computed and strictly proved; the amount remained at large.

p. 3

Legal principles established

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  • Reinstatement can only be ordered within three years of dismissal
  • A fixed-term contract lapses by effluxion of time and the employer is entitled not to renew it in terms of the termination clause
  • Claims for special damages must be specifically pleaded, computed and strictly proved

Court orders

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  1. 1.The claimant's statement of claim is dismissed
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsections 43 and 45
  • Employment Actsection 35
  • Anti-Corruption and Economic Crimes Act No. 3 of 2003section 39(3)(a) as read with section 48(1)
  • Employment and Labour Relations Court ActSection 12
  • Labour Relations ActNot specified
  • Recognition Agreement / Collective Bargaining Agreement between respondent and interested partyclauses 29(a), 29(d), 30(i), 39

Cases cited (1)

  • Sotik Highlands Tea Estates Limited –Versus- Kenya Plantation and Agricultural Workers Union
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12 (employment dispute)

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, "Vincent Alusi Opiyo v Kenya Power & Lighting Company Limited; Kenya Electrical Trades & Allied Workers’ Union (KEWAWU) (Interested Party) [2021] KEELRC 621 (KLR)", Case Analysis (2021). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/621/eng@2021-10-29

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