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ELRCDismissedClaim dated 7th December 2015 (memorandum of claim filed 09th December 2015)· [2022] KEELRC 317 (KLR)

Esther Muthoni Wachira v Vice Chancelor University of Nairobi & University of Nairobi [2022] KEELRC 317 (KLR)

Employment and Labour Relations Court
13 April 2022
3,839 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that when a fixed-term contract simply expires, the worker cannot claim unfair termination or compensation.

What this practically means

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Executive summary

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The claimant, employed as a cleaner at the University of Nairobi's College of Health Sciences from 2nd June 2002, claimed unfair termination, unpaid leave, public holidays, commuter and travelling allowance, unpaid maternity leave, lack of protective clothing, and sought terminal benefits, a certificate of service, 12 months' wages as compensation, interest and costs totalling about Kshs.4,011,037/=. She asserted she served continuously for 12 years and 8 months, and that under section 37 of the Employment Act her casual engagement converted to regular employment protected by the KUDHEIHA CBA. The Respondent contended she was engaged on casual and fixed-term 3-month contracts renewable subject to availability of work and funds, that her last contract expired on 31st January 2015, that the CBA covered only permanent and pensionable staff, and urged dismissal of the claim. The court framed four issues: the terms of engagement, whether they were fixed or permanent, applicability of the CBA, and reliefs. It held the claimant accepted successive 3-month fixed-term contracts with breaks between them, so no continuous casual service converted her employment under section 37. The contract expired by effluxion of time on 31st January 2015, a date the claimant confirmed, and fixed-term contracts carry no expectations of renewal. The CBA did not apply to her as she was not a permanent and pensionable employee. The claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the claimant was engaged on fixed-term contracts or had a permanent/deemed-regular contract

Holding

The claimant was hired on renewable 3-month fixed-term contracts which she accepted and worked under; there was no continuous casual engagement capable of conversion under section 37 of the Employment Act

Reasoning

The documents showed repeated short-term contracts of three months, one of which the claimant signed. She confirmed in cross-examination that her last day of work was 31st January 2015 when the final contract expired. Contracts were sometimes issued after gaps of months, showing no continuous service. The court therefore rejected the claim that casual terms converted to permanent ones.

p. 4
02

Whether the termination was unfair

Holding

There was no termination at all; the contract ended by effluxion of time on 31st January 2015 and the employer had no obligation to renew it

Reasoning

Relying on the Court of Appeal in Registered Trustees of the Presbyterian Church of East Africa v Ruth Gathoni Ngotho Kariuki, fixed term contracts carry no expectations beyond expiry. The last contract expired on 31st January 2015, a date the claimant herself confirmed, and there were no further instructions from the University that she continue working.

p. 4
03

Whether the KUDHEIHA CBA applied to the claimant

Holding

The CBA applied only to permanent and pensionable employees in Grades I-VI and the claimant, being a fixed-term employee, was not covered

Reasoning

On a true construction of the CBA between KUDHEIHA and the University, coverage was limited to permanent and pensionable employees. The claimant was not in permanent employment within the meaning of clause 2(b) of the agreement and therefore could not claim its benefits such as commuter allowance, leave and travelling allowance.

p. 5

Legal principles established

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  • Fixed term contracts carry no rights, obligations or expectations beyond the date of expiry, and no claim for wrongful termination lies where a contract ends by effluxion of time
  • Fixed term contracts are self-terminating and require no intervention by either party

Court orders

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  1. 1.The Claimant's case is dismissed
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Employment Act 2007sections 7, 8, 18(5)(a), 26(1) and (2), 35, 37, 37(1), 37(3), 40, 40(1), 41, 45, 45(1) and (2), 51
  • Constitution of Kenya 2010Article 41(1), (2)(a) and (b)
  • Constitution of Kenya 2010Articles 159(2)(d), 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (8)

  • Silas Mutwiri versus Haggai Multi-Cargo Handling Services Limited
    2013 eKLR
  • Elizabeth Washeke and Others versus Airtel k Ltd and Another Cause No 1972 of 2012
  • BENARD WANJOHI MURIUKI VERSUS KIRINYAGA WATER AND SANITATION COMPANY LTD
    2012 EKLr
  • JOHNSTONE LUVISA VERSUS ALL PACK INDUSTRIES LIMITED
    (2019) EKLR
  • PETER KINGANGI NJERU VERSUS UNIVERSITY OF NAIROBI
    2021 EKLR
  • REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF EAST AFRICA & ANOTHER VERSUS RUTH GATHONI NGOTHO KARIUKI
    2017 EKLR
  • MARGARET A. OCHEING VS NAIROBI WATER CONSERVATION AND PIPELINE CO-OPERATION
    (2014) eKLR
  • Teresa Carlo Omondi versus Transparency International Kenya ltd
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (Employment and Labour Relations Court) over a claim of unfair termination under the Employment Act 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Esther Muthoni Wachira v Vice Chancelor University of Nairobi & University of Nairobi [2022] KEELRC 317 (KLR)", Case Analysis (2022). Claim dated 7th December 2015 (memorandum of claim filed 09th December 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/317/eng@2022-04-13

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