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ELRCPartially AllowedStatement of Claim dated 6th April 2016, filed 12th April 2016· [2022] KEELRC 1068 (KLR)

Julius Okang’a Omulando v Tradewinds Aviation Services Limited [2022] KEELRC 1068 (KLR)

Employment and Labour Relations Court
19 January 2022
3,730 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Porter/Cleaner from 2009 under successive fixed-term contracts last extended from 7th March 2013 to 12th May 2013, was found with an undeclared flash disk at the air site on 9th May 2013, arrested, and charged with conveying suspected stolen property. He was denied airport access from 13th May 2013 and acquitted on 3rd August 2015. He sued seeking a declaration that his dismissal was unlawful and unfair, Kshs.150,269.70 comprising May 2013 salary, one month's salary in lieu of notice and 12 months' compensation, plus costs and interest. The Respondent maintained the contract lapsed on 12th May 2013 with no renewal obligation, and that the Claimant could not access the workplace after his airport pass was backlisted. The court framed two issues: whether the contract was unfairly terminated or ended by effluxion of time, and entitlement to reliefs. Relying on Court of Appeal authority on fixed-term contracts, the court held the contract ended on 12th May 2013 by operation of law, the Respondent had no obligation to renew it or give reasons for non-renewal, and the uncommunicated termination letter of 28th May 2013 was of no effect as it purported to terminate a non-existent contract. The Claimant failed to prove unfair termination on a balance of probabilities. Judgment was entered for the Claimant only for May 2013 salary of Kshs.13,333.55, with interest, a certificate of service, and each party bearing its own costs.

Key legal issues

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01

Whether the Claimant's fixed-term contract was unfairly terminated or ended by effluxion of time

Holding

The contract ended on expiry of its duration on 12th May 2013; the Respondent was under no obligation to renew it or notify the Claimant of its lapse

Reasoning

The court found the parties intended the contract to end at a particular time, with no renewal clause. The Claimant's averment of permanence was unsupported. Applying authorities on fixed-term contracts, the court held no reasons are needed beyond effluxion of time. The 28th May 2013 termination letter, never communicated, purported to terminate a non-existent contract.

p. 4
02

Whether the Claimant proved unfair termination

Holding

No; the Claimant failed to establish unfairness on a balance of probabilities

Reasoning

The Claimant was found with an undeclared flash disk in suspicious circumstances, setting in motion the events leading to his arrest. Previous renewals did not of themselves constitute a renewal. The statement of claim made no specific allegations about the date or manner of termination, and reliance on post-acquittal circumstances was untenable.

p. 5
03

Reliefs entitlement

Holding

Only May 2013 salary awarded since the Respondent admitted the employment relationship subsisted to 28th May 2013; notice pay and compensation failed

Reasoning

Having found the contract ended by operation of law, claims for notice pay and compensation failed. However, the Respondent admitted in its memorandum of response that the Claimant was its employee to 28th May 2013, justifying the award of May 2013 salary, and a certificate of service was ordered.

p. 5

Legal principles established

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  • A fixed-term contract ends by effluxion of time and an employer is under no obligation to renew it or give reasons for non-renewal unless the contract requires it
  • Fixed-term contracts carry no rights, obligations or expectations beyond the date of expiry
  • A termination letter relating to a contract that has already lapsed is of no effect

Court orders

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  1. 1.Judgment entered for the Claimant for the sum of Kshs.13,333.55 being salary for May 2013
  2. 2.Interest at Court rates from the date of judgment till payment in full
  3. 3.Respondent to issue the Claimant with a certificate of service forthwith
  4. 4.Each party shall bear its costs

Authorities

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Legislation

  • Employment ActSection 43
  • Employment Act 2007Section 41
  • Employment ActSections 41, 43 and 45
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (11)

  • David Gichana Omuya v Mombasa Maize Millers Limited
    [2014] eKLR
  • Shankar Saklani v DHL Global Forwarding (K) Ltd
    [2013] eKLR
  • Linus Barasa Odhiambo v Wells Fargo Limited
  • KUDHEIHA Workers Union v Board of Governors, Kerugoya Boys Secondary
  • Wells v Newfoundland
  • Savings and Loan Kenya Limited v Mayfair Holdings Limited
    [2012] 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
  • Francis Chire Chachi v Amatsi Water Services Company Limited
    [2012] eKLR
  • Registered Trustees of the Presbyterian Church of East Africa & another v Ruth Gathoni Ngotho-Kariuki
    [2017] eKLR
  • Emmanuel Musembi Nthambi v Tarmal Wire Products Ltd
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (claim for unfair termination and employment benefits)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Julius Okang’a Omulando v Tradewinds Aviation Services Limited [2022] KEELRC 1068 (KLR)", Case Analysis (2022). Statement of Claim dated 6th April 2016, filed 12th April 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1068/eng@2022-01-19

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