Alexander Mbugua Gitehi v Jacaranda Hotels Limited [2022] KEELRC 841 (KLR)
The bottom line
#A Kenyan court ruled a fixed term job contract ends automatically when it expires, so the worker was owed only two months' salary, not four years of pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the employment relationship continued after expiry of the last fixed term contract on 30th June 2009
The Claimant was not an employee after 30th June 2009; the last fixed term contract terminated by effluxion of time and was never renewed
The Court traced the successive six-month contracts, noting the last contract expressly provided for automatic termination on 30th June 2009 with no notice required. Both CW1 and RW1 confirmed no other contract was signed. The claimant's assertion of suspension until conclusion of the criminal case was unsupported; the suspension lapsed on 2nd June 2009 and neither party led evidence it was revisited.
Whether the Respondent terminated or constructively dismissed the Claimant
The Claimant failed to establish any termination or dismissal by the Respondent on a balance of probabilities
The Claimant's pleaded 'construct dismissal' was unclear and unsupported; he led no evidence of when or how he was dismissed. His contention of reinstatement being refused in 2013 was difficult to contextualise since reinstatement presupposes a prior dismissal, none of which was proved. Sections 41 and 45 of the Employment Act and the authorities on unfair termination were therefore irrelevant.
Whether the Respondent's counter claim founded on alleged absconding could succeed
The counter claim/set off failed for want of proof of desertion
The Respondent alleged the Claimant absconded duty from 2nd June 2009 but adduced no evidence of any effort to establish contact, no notice to show cause and no report to the Labour Officer. RW1 admitted she neither followed up the absence nor issued a notice to show cause, so the fact of desertion was not established.
Entitlement to salary and service charge for May and June 2009
The Claimant was awarded Kshs.48,690 gross salary and Kshs.8,316 service charge for May and June 2009
The Respondent neither denied non-payment of salary for May and June 2009 nor led evidence of payment. Service charge, distinguished from statutory service pay under Section 35(5) of the Employment Act, was a monthly discretionary payment in the hospitality sector shown in the Claimant's payslips, and was payable only for the two months he remained employed.
Legal principles established
#- Employers are not obliged to give reasons for non-renewal of fixed term contracts unless the contract so provides
- Fixed term contracts carry no rights, obligations or expectations beyond the date of expiry
- A fixed term contract that expires by effluxion of time terminates by operation of law, not by the act of the employer
- An employer alleging desertion must take reasonable steps to contact the employee and follow disciplinary procedure before termination
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for the sum of Kshs.57,006/-
- 2.No order as to costs
- 3.Interest at court rates from the date of judgment till payment in full
- 4.Counter claim/set off dismissed with no order as to costs
- Jurisdiction invoked
- Original jurisdiction under the Employment and Labour Relations Court Act to determine employment claims under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alexander Mbugua Gitehi v Jacaranda Hotels Limited [2022] KEELRC 841 (KLR)", Case Analysis (2022). Cause No 952 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/841/eng@2022-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.