Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 952 of 2015· [2022] KEELRC 841 (KLR)

Alexander Mbugua Gitehi v Jacaranda Hotels Limited [2022] KEELRC 841 (KLR)

Employment and Labour Relations Court of Kenya
9 February 2022
5,400 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

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

#
The Claimant, formerly employed as an Accounts Assistant under successive six-month fixed term contracts from 1st October 2007, sued the Respondent alleging constructive dismissal on 28th September 2013 after being refused reinstatement following his acquittal in Criminal Case No. 1151 of 2009 (stealing by servant). He sought declarations of unfair dismissal, unpaid salary for the suspension period May 2009 to September 2013, service charge, untaken off days and leave, notice pay, and 12 months' compensation, totalling Kshs.1,868,536. The Respondent denied dismissal, contending the last fixed term contract lapsed on 30th June 2009, that the Claimant absconded duty after suspension on 18th May 2009, and counterclaimed one month's salary in lieu of notice. The court framed two issues: whether the contract was terminated by the Respondent or by operation of law, and entitlement to reliefs. Applying Court of Appeal authority that fixed term contracts carry no rights beyond expiry, the court held the last contract terminated automatically on 30th June 2009 by effluxion of time, that the Claimant was not an employee thereafter, and that he failed to prove any termination or constructive dismissal by the Respondent. Sections 41 and 45 of the Employment Act were held irrelevant. However, the Respondent's counter claim failed because no evidence of desertion or disciplinary follow-up was adduced. Most heads of claim were dismissed for want of proof or for falling outside the employment period, but the court awarded gross salary for May and June 2009 (Kshs.48,690) and service charge for the same months (Kshs.8,316). Judgment was entered for the Claimant for Kshs.57,006 with no order as to costs, plus interest at court rates from the date of judgment until payment in full.

Key legal issues

#
01

Whether the employment relationship continued after expiry of the last fixed term contract on 30th June 2009

Holding

The Claimant was not an employee after 30th June 2009; the last fixed term contract terminated by effluxion of time and was never renewed

Reasoning

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.

p. 7
02

Whether the Respondent terminated or constructively dismissed the Claimant

Holding

The Claimant failed to establish any termination or dismissal by the Respondent on a balance of probabilities

Reasoning

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.

p. 7
03

Whether the Respondent's counter claim founded on alleged absconding could succeed

Holding

The counter claim/set off failed for want of proof of desertion

Reasoning

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.

p. 7
04

Entitlement to salary and service charge for May and June 2009

Holding

The Claimant was awarded Kshs.48,690 gross salary and Kshs.8,316 service charge for May and June 2009

Reasoning

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.

p. 8

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. 1.Judgment entered for the Claimant against the Respondent for the sum of Kshs.57,006/-
  2. 2.No order as to costs
  3. 3.Interest at court rates from the date of judgment till payment in full
  4. 4.Counter claim/set off dismissed with no order as to costs

Authorities

#

Legislation

  • Employment ActSection 90
  • Employment ActSection 44(4)(g)
  • Employment ActSection 45 (incl. 45(2))
  • Employment ActSection 41
  • Employment ActSection 35 (incl. 35(5))
  • Employment ActSection 49(1)(a)
  • Employment ActSection 49(1)(c)
  • Evidence ActSections 107 and 109
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (16)

  • Justine Onwoyo Among'a v Mount Kenya University
    [2016] eKLR
  • Peter Wangai v Egerton University
    [2019] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Charles Njagi Nyaga v Air Connection Limited
    [2016] eKLR
  • Thomas Sila Nzivo v Bamburi Cement Limited
    [2014] eKLR
  • Josephat Rubia Oyangi v Kenya Education Management Institute (KEMI)
    [2018] eKLR
  • Evans Otieno Nyakwana v Cleophas Bwana Ongaro
    [2015] eKLR
  • Stephen M. Kitheka v Kevita International Limited
    [2018] eKLR
  • Francis Chire Chachi v Amatsi Water Services Company Limited
    [2012] eKLR
  • Oshwal Academy (Nairobi) & Another v Indu Vishwanath
    [2015] eKLR
  • Bernard Wanjohi Muriuki v Kirinyaga Water and Sanitation Company Limited & Another
    [2012] eKLR
  • The Registered Trustees De La Salle Christian Brothers T/A St. Mary's Boys' Secondary School v Julius D. M. Baini
    [2017] eKLR
  • Registered Trustees of the Presbyterian Church of East Africa & another v Ruth Gathoni Ngotho-Kariuki
    [2017] eKLR
  • Boniface Mwangi v B.O.G. Iyego Secondary School
    [2019] eKLR
  • Simon Mbithi Mbane v Intersecurity Services
    [2018] eKLR
  • Nzioka v Smart Coatings Limited
    [2017] eKLR
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.