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ELRCDismissedELRC Cause No. 247 of 2015· [2022] KEELRC 470 (KLR)

Zaphania Yore Bisieri v Eastern Procude (K) Ltd [2022] KEELRC 470 (KLR)

Employment and Labour Relations Court
17 March 2022
CBCHRISTINE N. BAARI
2,323 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that a fixed term contract simply ends when it expires, so failing to renew it is not unfair termination.

What this practically means

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Executive summary

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The Claimant sued the Respondent claiming a declaration that his termination on 7th December 2014 was unfair, together with twelve months' salary as compensation, one month's salary in lieu of notice, unpaid leave dues, service pay and costs. He pleaded employment since 1981 on permanent and pensionable terms; the Respondent asserted he was employed on fixed term contracts, the last running from 27th October 2014 to 31st December 2014, and that it lapsed naturally after he absconded duty. The Respondent relied on authorities holding that a fixed term contract lapses on expiry without notice pay or legitimate expectation of renewal, and that an NSSF member is not entitled to service pay. The court found the Claimant's account inconsistent - at times permanent employee, fixed term employee or casual labourer - and, noting the absence of a CBA and the pay slips showing output-based pay, deemed the relationship a renewable fixed term contract on the strength of the contract produced in evidence. Applying Mombasa Apparels, the court held the contract lapsed automatically on 31st December 2014, requiring no termination notice and carrying no legitimate expectation of renewal. All heads of claim failed: no termination occurred; the Claimant worked during notice; leave was unquantified; and service pay is excluded for NSSF members under Section 35(6)(d) of the Employment Act. The Memorandum of Claim was dismissed with no orders as to costs. Judgment delivered at Kisumu on 17th March 2022 by Christine N. Baari, Judge.

Key legal issues

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01

Nature of the employment relationship

Holding

In the absence of contrary evidence, the Claimant was on a renewable fixed term contract based on the contract produced in evidence

Reasoning

The Claimant gave inconsistent accounts - permanent employee, fixed term contractee, then casual labourer. He disowned the contract produced by the Respondent and did not produce a CBA to establish union-negotiated terms. Pay slips showed output-based pay without a constant monthly wage. The court therefore deemed the relationship fixed term on the strength of the written contract.

p. 3
02

Whether non-renewal of a fixed term contract amounts to unfair termination

Holding

No - a fixed term contract lapses automatically on expiry without termination notice or legitimate expectation of renewal

Reasoning

Relying on Mombasa Apparels (EPZ) Limited v Tailor and Textiles Workers Union, the court held fixed term contracts lapse automatically unless mutually extended. The Claimant admitted being notified two months before expiry that his contract would end, so the non-renewal took him by no surprise and was not a termination.

p. 3

Legal principles established

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  • A fixed term contract ends automatically on its lapse date and requires no termination notice, nor does it carry a legitimate expectation of renewal
  • An employee registered under the NSSF is not entitled to service pay

Court orders

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  1. 1.The Claimant's Memorandum of Claim dated 17th August, 2015, and filed on 24th September, 2015, is dismissed with no orders as to costs

Authorities

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Legislation

  • Employment Act, 2007Section 37
  • Employment Act, 2007Section 35(6)(d)

Cases cited (5)

  • Isaiah Makhola V Basco Products Ltd
    (2014) eKLR
  • Theuri v Kadet Limited
    Industrial Cause No. 368 of 2009
  • Philip Waweru Gitu v Straight Security Services Limited
    (2009) eKLR
  • Mombasa Apparels (EPZ) Limited v Tailor and Textiles Workers Union
    (2016) eKLR
  • Wilberforce Ojiambo Oundo v Regent Management Limited
    ELRC Cause No. 200 of 2011
Jurisdiction invoked
Article 162(2) of the Constitution and the Employment and Labour Relations Court Act (employment and labour relations dispute, first instance)

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, "Zaphania Yore Bisieri v Eastern Procude (K) Ltd [2022] KEELRC 470 (KLR)", Case Analysis (2022). ELRC Cause No. 247 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/470/eng@2022-03-17

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