Peter Kingangi Njeru v University of Nairobi [2021] KEELRC 1436 (KLR)

The court held that parties may lawfully engage under fixed term contracts under section 10(3)(c). Where an employer has unionised employees under a CBA, a non-unionised employee should not be disadvantaged as a matter of fair labour practice, but that does not convert fixed term engagements into permanent employment. Each contract ended on effluxion of time and renewal created a new relationship, so accumulation of contracts for 21 years does not create a continuing cause of action.

Section 90 requires claims within 3 years of cessation of the employment relationship, read with section 18(5)(a) which obliges the employer to pay all dues upon termination by effluxion of time. The claim filed on 19th August, 2016 could only reach back to 18th August, 2013. Claims under the repealed Employment Act were governed by the 6-year period in the Limitation of Actions Act. CBA terms could not revive time barred claims.

The court found the claimant had notice of the rescission and reasons were given pursuant to sections 41, 43 and 45 of the Employment Act. He continued receiving payment until April, 2016 even though the contract was rescinded before it took effect on 1st November, 2015, which compensated him for loss of employment. No constitutional violation was established.

Applying the CBA without disadvantaging the non-unionised claimant, gratuity was computed on the last wage of Ksh.25,413 at 31% for the permitted period, and leave travelling allowance at Ksh.4,956 per year for three years. Passage and baggage allowance under clause 21 was payable at the end of employment. Pro rata leave was tabulated at 1.75 days per month under section 28 of the Act.