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ELRCDismissedNairobi ELRC Cause No. 1261 of 2015· [2021] KEELRC 1604 (KLR)

Willy Changwony v Laikipia Universisty [2021] KEELRC 1604 (KLR)

Employment and Labour Relations Court
10 June 2021
HWHellen Wasilwa
2,488 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

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 claims of long service need solid proof.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a cook, filed a memorandum of claim on 10th August 2015 alleging unfair termination and bad labour practices, seeking reinstatement, arrears of salary, allowances, leave, notice pay, gratuity, compensation and exemplary damages, or in the alternative payments under sections 49 and 51 of the Employment Act. He alleged he was employed in January 2003 on a monthly salary and served for 9 years and 3 months, until his terms were unilaterally converted to a 3 month fixed term contract in June 2012 which was not renewed on expiry. The respondent conceded the 2003 engagement but maintained it was casual, dependent on availability of work, that the 2012 fixed term contract was willingly signed and expired lawfully, and that the suit was time barred under section 90 of the Employment Act. In a judgment delivered on 10th June 2021, Lady Justice Hellen Wasilwa found the claimant was a casual worker on and off from 2003 to June 2012 and that the assertion of 9 years' continuous service was unsupported by evidence. The claim was filed within the 3 year limitation period, so the limitation objection failed. However, the fixed term contract ended by effluxion of time and its non-renewal was not an unfair termination. The only remedy available was a certificate of service, which the claimant appeared to have already received. The entire claim was dismissed with no order as to costs.

Key legal issues

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01

Whether the claimant was a continuous employee for 9 years or a casual worker engaged on and off

Holding

The claimant was a casual worker on and off from 2003 to June 2012 when he was placed on a fixed 3 month contract; there was no evidence of 9 years continuous service

Reasoning

The court examined the claimant's own exhibited documents, including the initial appointment letter of 17/1/2003 and casual employee lists for 2009 and 2012, and found them inconsistent with continuous service. The respondent's evidence showed the claimant never worked over 3 months continuously except the July-September 2012 fixed contract period. Continuous service therefore was not proved.

p. 3
02

Whether non-renewal of the fixed term contract amounted to unfair termination

Holding

No unfair termination; the fixed term contract expired by effluxion of time and was not renewed

Reasoning

The claimant admitted signing the 3 month contract on 26/6/2012 expiring in October 2012 and being notified by the letter of 28th September 2012 that it would not be renewed. Since the contract had a defined end and notice of non-renewal was given, no termination occurred within the meaning of the unfair termination provisions.

p. 4
03

Whether the claim was statute barred under section 90 of the Employment Act

Holding

The claim was filed within the 3 year limitation period and was not time barred

Reasoning

The contract ended in September 2012 and the claim was filed on 10th August 2015, within 3 years. The respondent's limitation objection failed.

p. 4

Legal principles established

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  • A fixed term contract that ends by effluxion of time is not unfairly terminated
  • A claim filed within 3 years of termination of a fixed term contract is not time barred under section 90 of the Employment Act
  • A claimant who has already been issued with a certificate of service has received the only remedy available

Court orders

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  1. 1.The claim is dismissed as not tenable
  2. 2.The claimant is entitled to issuance of a certificate of service, which appears to have already been supplied as per Appendix WCVIII
  3. 3.No order of costs

Authorities

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Legislation

  • Employment Actsection 37(1)(b)
  • Employment Actsection 35(1)(c)
  • Employment Actsection 90
  • Employment Actsection 10(3)(c)
  • Employment Actsection 49(1)(c) and 49(4)(a)(c)(j)
  • Employment Actsection 51
  • Employment Actsection 13, Part III Clause 7
  • Regulations of Wages (Legal Notice of 1st May, 2012)basic pay for cook/waiter

Cases cited (4)

  • Fatuma Abdi –v- Kenya School of Monetary Studies
    Nairobi ELRC No. 1261 of 2015 (UR)
  • Susan Wairimu Karaya –v- Egerton University (Laikipia University
    Nakuru ELRC Cause No. 324(B) of 2015 (UR)
  • David Kinuthia –versus- Laikipia University
    Nakuru ELRC Cause No. 496 of 2014 (UR)
  • Kenya Union of domestic Hotel Educational Institutions Hospitals and Allied workers
    Nakuru ELRC Cause No. 208 of 2013 (UR)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act (claim of unfair termination and bad labour practices)

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, "Willy Changwony v Laikipia Universisty [2021] KEELRC 1604 (KLR)", Case Analysis (2021). Nairobi ELRC Cause No. 1261 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1604/eng@2021-06-10

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