Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in the judgment as provided· [2022] KEELRC 33 (KLR)

Nyamai v David Engineering Limited (Cause 2040 of 2016) [2022] KEELRC 33 (KLR)

Employment and Labour Relations Court
26 April 2022
NMNzioki Wa Makau
1,120 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent as a Machine Operator (later Senior Fitter) from July 2011 to September 2016, sued for damages for unfair termination and terminal dues of Kshs 434,822/-. He alleged summary dismissal without notice after he questioned a demand to refund medical costs, and claimed salary arrears for September 2016, unpaid leave, service pay/gratuity, notice pay and a certificate of service. The Respondent maintained that the engagement was on successive three-month fixed term contracts which expired on September 6, 2016, that leave and September salary were paid, that gratuity was contrary to statute as the Claimant contributed to NSSF, and sought dismissal with costs. The court found that the Respondent did not terminate the contract; it ended by effluxion of time, so there was no unfair termination. Leave days had been expended per the payslips, and no leave pay could be recovered in 2016 for leave allegedly untaken in 2011-2015. The September 2016 salary claim was not demonstrated, and as a contributing NSSF member the Claimant was precluded from service pay under Section 35(6) of the Employment Act. The Claimant's cited authorities, all against the same Respondent, were distinguishable as none involved a contract expiring by effluxion of time. The suit was held unmerited, dismissed with costs to the Respondent, per Nzioki Wa Makau, J, on April 26, 2022.

Key legal issues

#
01

Whether there was unfair termination or mere expiry of a fixed term contract

Holding

The contract was a 3-month fixed term contract that ended by effluxion of time; there was no unfair termination.

Reasoning

The Claimant was employed on successive fixed term contracts. The Respondent did not terminate the contract; it simply expired with the passage of time. Non-renewal upon expiry cannot amount to unfair termination under Section 45 of the Employment Act, and the authorities relied on by the Claimant were distinguishable as none involved a contract that ran out by effluxion of time.

p. 2
02

Entitlement to leave pay, September 2016 salary and service pay

Holding

None of these heads was proved; service pay is statutorily excluded.

Reasoning

Payslips showed leave days had been expended; no demand or proof supported leave allegedly not taken in earlier years. The salary arrears claim was not demonstrated, and as a contributing NSSF member the Claimant is precluded from service pay by Section 35(6) of the Employment Act. The suit was therefore unmerited and dismissed with costs.

p. 2

Legal principles established

#
  • A fixed term contract that ends on expiry of its term is terminated by effluxion of time, not unfairly terminated, and its non-renewal does not attract compensation for unfair termination.
  • An employee who is a contributing member of NSSF is precluded by Section 35(6) of the Employment Act from claiming service pay.

Court orders

#
  1. 1.The suit is dismissed
  2. 2.Costs of the suit awarded to the Respondent

Authorities

#

Legislation

  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 28
  • Employment Act, 2007Section 44(1)
  • Employment Act, 2007Section 51
  • Employment Act, 2007Section 35(6)

Cases cited (6)

  • Onesmus Mbithi Muia v David Engineering Ltd
    [2021] eKLR, ELRC Cause 2028 of 2016
  • Henry Juma Obudho v David Engineering Ltd
    [2018] eKLR
  • Nathan Ogada Atiagaga v David Engineering Ltd
    [2015] eKLR
  • Farana Yusuf Ibrahim v David Engineering Ltd
    [2014] eKLR
  • Margaret A Ochieng v National Water Conservation & Pipeline Corporation
    [2014] eKLR
  • Central Bank of Kenya v Davies Muteti
    Civil Appeal No. 82 of 2005 [2009] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination and terminal dues claim)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nyamai v David Engineering Limited (Cause 2040 of 2016) [2022] KEELRC 33 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/33/eng@2022-04-26

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