Rajab Barasa & 4 others v Kenya Meat Commission [2021] KEELRC 1439 (KLR)
The bottom line
#The Employment Court confirmed fixed term contracts in Kenya end automatically on their expiry date, but awarded some workers unpaid acting allowances and gratuity.
What this practically means
#Executive summary
#Key legal issues
#Whether non-renewal of fixed term contracts for periods shorter than 3 years was an unfair labour practice
Fixed term contracts are lawful under section 10(3)(c) of the Employment Act; they lapse automatically on their end date and the court will not convert them into automatic renewals of three years.
The court held that the HR Policy's provision for a maximum renewable period of three years set a ceiling, not a guarantee. Every appointment and renewal was in writing for a stated term. Upon expiry the contract ends by operation of law without the need for notice or reasons, unless the contract itself requires justification. Issuing one-year renewals was therefore lawful and not an unfair labour practice.
Whether the claimants were discriminated against compared to retrenched employees
No discrimination established; comparators' circumstances differed and claimants were no longer in employment when retrenchments occurred.
Applying the Supreme Court's definition of discrimination, the court found the claimants failed to demonstrate unjustified differential treatment. The terms of the 130 comparable fixed term contracts were not addressed; by 30 November 2016 none of the claimants was in employment; the early retirement programme was voluntary and the claimants did not apply. Freedom of contract allowed the respondent to hire per its needs after the claimants declined to apply for advertised positions.
Whether acting positions held beyond six months should be remunerated with back pay and deemed confirmations
Acting allowances are payable under the HR policy for proven acting periods, but prolonged acting does not amount to automatic confirmation; time-barred claims fail under section 90 of the Employment Act.
The court found specific written terms governed each appointment and redeployment was not acting. Acting allowances were awarded only for proven, unexpired-limitation periods: the 4th claimant as company secretary (May 2013 to April 2016) and as HR and administration manager (August 2013 to February 2015), and the 5th claimant as livestock manager (27 January 2014 to 27 October 2015). Claims from 2011 were time barred.
The status of the 4th claimant given ambiguous renewal letters
The 4th claimant's contract letters were ambiguous and conflicting; he had no written fixed term from 1 May 2015, entitling him to notice pay under sections 35 and 36 of the Employment Act.
The letter of 4 November 2015 renewed the contract from an unstated '1st May' year to 4 February 2016, while the letter of 30 November 2015 gave notice ending employment on '31st April, 2016', a non-existent date. The court held the claimant remained in employment without written terms for the grey period and that a proper notice should have issued, entitling him to one month's gross salary as notice pay.
Whether reinstatement and terminal dues beyond contract expiry were available
Reinstatement refused; only admitted gratuity and tabulated dues payable; claims for post-expiry salary and retrenchment packages rejected.
Reinstatement requires a finding of unlawful and unfair termination plus exceptional circumstances. Each claimant's contract ended on its own terms with notice of non-renewal, save the 4th claimant's distinct situation. Gratuity was admitted by the respondent and ordered tabulated and paid at the shop floor; other claims such as unapproved taxi, mileage and medical expenses failed.
Legal principles established
#- Expiry of a fixed term contract is termination by operation of law, not a dismissal
- Each renewed fixed term contract forms a separate and distinct employment relationship in law
- Discrimination requires unjustified differential treatment that imposes a disadvantage or denial of equal terms
Court orders
#- 1.Gratuity due for each claimant shall be tabulated and paid at the shop floor
- 2.2nd claimant entitled to leave days due for the period of 16th December 2012 until employment terminated, if not already paid
- 3.4th claimant entitled to acting allowance for acting as company secretary for May 2013 to April 2016, to be tabulated at the shop floor
- 4.4th claimant entitled to acting allowance in the position of HR and administration manager for August 2013 to February 2015, to be tabulated at the shop floor
- 5.4th claimant entitled to notice pay equivalent to one month's gross salary of Ksh.340,000
- 6.5th claimant entitled to acting allowance as livestock manager for the period 27th January 2014 to 27th October 2015, if not already paid
- 7.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, 2007 and the employment relationship between the parties)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Samuel Daniel Wafula v Kenyatta University [2016] KEELRC 1238 (KLR)[2016] KEELRC 1238 (KLR)23 Mar 2016followed
- Banking, Insurance & Finance Union (Kenya) v Maisha Bora Sacco Society Limited [2016] KEELRC 1191 (KLR)[2016] KEELRC 1191 (KLR)21 Mar 2016applied
Cite this brief
#Cite this brief
Caselaw, "Rajab Barasa & 4 others v Kenya Meat Commission [2021] KEELRC 1439 (KLR)", Case Analysis (2021). Cause No. 2262 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1439/eng@2021-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.