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ELRCPartially AllowedNot stated in the judgment (Employment Cause; Memorandum of Claim dated 12th July, 2021)· [2022] KEELRC 625 (KLR)

Sandra M. Waswa v Article 19: Global Campaign for Free Expression [2022] KEELRC 625 (KLR)

Employment and Labour Relations Court
23 February 2022
MOMaureen Onyango
3,346 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employee who kept working after her contract expired was protected from unfair termination and awarded her Kshs.3.94 million.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 13th April 2011 as Senior Programme Officer – Access to Information, last held a fixed term contract expiring on 30th June 2020. She continued working on the same terms until 8th March 2021 when she received one month's notice of non-renewal, the termination letter citing financial strains from non-renewal of grant contracts and COVID-19 slowdowns. The Respondent maintained the contract lapsed by effluxion of time after the Claimant declined to sign a draft renewal contract; the Claimant pleaded promises of renewal, legitimate expectation, and unlawful redundancy contrary to Section 40 of the Employment Act. The court framed two issues: validity of the termination procedurally and substantively, and entitlement to reliefs. Holding that the Claimant worked over nine months past expiry on a month-on-month open-ended basis, the court found her entitled to the fair procedure and valid reason protections of Sections 41 and 43 of the Employment Act. Noting the inconsistency between the letter's stated reason and the defence's assertion that the Claimant refused to sign a renewal, the court found the stated reason not genuine and no fair hearing afforded, declaring the termination unfair for both invalid reason and want of procedure. Reinstatement was refused for want of exceptional circumstances. The court awarded one month's salary in lieu of notice (Kshs.358,343.41) and 10 months' compensation (Kshs.3,583,434.10), a total of Kshs.3,941,777.51, with interest at court rates from the date of judgment. Claims for two years' contractual pay, gratuity, 210 leave days, exemplary damages and three months' notice pay were declined. The Respondent was ordered to bear the Claimant's costs.

Key legal issues

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01

Whether the non-renewal of the Claimant's contract amounted to termination requiring valid reason and fair procedure

Holding

The termination was unfair both substantively and procedurally. Having worked over nine months after the contract lapsed on a month-on-month basis, the Claimant was entitled to the protections of Sections 41 and 43 of the Employment Act, which were not met.

Reasoning

The court found parties agreed the contract lapsed on 30th June 2020 but the Claimant continued working on the same terms until 8th March 2021. That continued employment converted the arrangement into a month-on-month open-ended contract. The employer gave one month's notice citing financial strains and COVID-19, yet in its defence asserted the Claimant failed to sign a draft renewal contract. The court found the stated reason not genuine and no fair hearing was afforded, rendering the termination unfair for both invalid reason and want of procedure.

p. 5
02

Whether the Claimant had legitimate expectation of renewal of her fixed term contract

Holding

Legitimate expectation was found to arise from the offer of renewal issued to the Claimant, and was taken into account in assessing compensation, though reinstatement was refused.

Reasoning

The Claimant argued, relying on authorities on legitimate expectation, that retention after expiry and promises of renewal created an expectation of renewal. The court acknowledged her legitimate expectation as raised by the offer of renewal, using it as a factor under Section 49(4) in awarding 10 months' compensation. However, the court did not convert the expectation into an order of reinstatement, holding exceptional circumstances were not demonstrated.

p. 5
03

Whether the Claimant was entitled to the reliefs sought

Holding

Partially: declaration of unfair termination, one month's notice pay and 10 months' compensation were awarded; two years' contractual pay, gratuity, 210 leave days, exemplary damages and reinstatement were declined for lack of proof or legal basis.

Reasoning

The court assessed each head of relief separately. Notice pay was limited to one month per the contract. Compensation was calibrated at 10 months' salary considering the circumstances of termination, legitimate expectation and 10 years of service under Section 49(4). Reinstatement failed for want of exceptional circumstances, and gratuity, leave days and exemplary damages failed for want of proof. Two years' contractual pay had no legal or contractual foundation.

p. 5

Legal principles established

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  • Where an employee continues working after expiry of a fixed term contract, the employment becomes a month-on-month open-ended contract attracting the protections of Sections 41 and 43 of the Employment Act (valid reason and fair procedure).
  • Where the reason given in a termination letter conflicts with the employer's pleaded defence, the stated reason is not the genuine reason for termination.

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was unfair
  2. 2.One month's salary in lieu of notice of Kshs.358,343.41
  3. 3.Compensation of 10 months' salary at Kshs.3,583,434.10 under Section 49(4) of the Employment Act
  4. 4.Judgment entered for the Claimant against the Respondent in the total sum of Kshs.3,941,777.51
  5. 5.Claimant's costs of the suit borne by the Respondent
  6. 6.Interest on the award at Court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 40
  • Employment ActSections 7, 8, 9, 10
  • Employment ActSection 47(5)
  • Employment ActSections 18 and 49 (including 49(4))
  • Employment ActSections 41 and 43
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (18)

  • Council of the Civil Service Union v Minister For The Civil Service
    1985 AC 374 H.L.
  • Combe v Combe
    1951 All ELR 766
  • John Nduba v Africa Medical and Research Foundation (Amref Health Africa)
    (2020) eKLR
  • Teresia Carlo Omondi v Transparency International Kenya
    (2017) eKLR
  • Thomas De La Rue Ltd v David Opondo Omutelema
    (2012) eKLR
  • Paul Ngeno v Pyrethrum Board of Kenya Limited
    (2013) eKLR
  • Francis Maina Kamau v Lee Construction
    (2014) eKLR
  • Fredrick Mulwa Mutiso v Kenya Commercial Bank Limited
  • JWN v Teachers Service Commission
    (2014) eKLR
  • Patrick Lumumba Maikura v Kenya Ports Authority
    (2013) eKLR
  • Abisalom Ajusa Magomere v Kenya Nut Company Limited
    NRB Industrial Cause No. 2525 of 2012
  • Linet Ndolo v Registered Trustees of the National Council of Churches of Kenya
    (2014) eKLR
  • Enos Olungo Mang’ong’o v Kenya Commercial Bank
    (2015) eKLR
  • Trocaire v Catherine Wambui Karuno
    (2018) eKLR
  • Stephen M. Kitheka v Kevita International Limited
    (2018) eKLR
  • Amatsi Water Services Company Limited v Francis Shire Chachi
    (2018) eKLR
  • Cleopatra Kama Mugyenyi v Aidspan
    (2019) eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Sandra M. Waswa v Article 19: Global Campaign for Free Expression [2022] KEELRC 625 (KLR)", Case Analysis (2022). Not stated in the judgment (Employment Cause; Memorandum of Claim dated 12th July, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/625/eng@2022-02-23

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