Olima v Jaramogi Oginga Odinga University of Science and Technology (Cause 19 of 2019) [2022] KEELRC 1503 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was constructively dismissed
No. The failure to renew the contract and revocation of the Registrar's Memo did not amount to a repudiatory breach or hostile work environment.
The court applied the Western Excavating contractual test and the Coca Cola unreasonable/contractual tests. It held renewal of a contract is the employer's discretion, the Claimant was appraised and informed he did not meet the performance threshold, and he failed to prove a hostile environment or repudiation of a fundamental term. Failure to renew therefore fell short of constructive dismissal.
Whether the Registrar's Internal Memo of 11 July 2018 created a legitimate expectation of renewal
No. The Memo's substance was to inform the Claimant that terminal dues would be processed, and renewal was not a function of the Registrar but of the Council.
Relying on the Presbyterian Church of East Africa case, the court noted fixed-term contracts expire by effluxion of time without expectations of renewal. The Memo preceded no renewal authority: the Chair of Council had written the previous day conveying non-renewal, the Registrar was junior to the Claimant and had withdrawn the Memo, explaining it as an error.
Whether clause 32 of the Terms of Service (exit package) remained applicable
No. It had been validly withdrawn following the Head of Public Service Circular, and the Claimant's failure to object within 14 days amounted to acceptance of the variation.
Under section 10(5) of the Employment Act a contract term may be altered in consultation with the employee. The University's Memo of 2 June 2015 notified the Claimant of the withdrawal and invited objections within 14 days. He neither objected nor responded, continued to serve, and so the clause fell away before separation.
Whether compensation for the unserved period of the contract was recoverable
No. Such claims are speculative and cannot be justified in law.
The court adopted the Supreme Court of Uganda's holding in Bank of Uganda v Tinkamanyire that compensation for the remainder of years an employee would have served, and for allowances they would have enjoyed, is unattainable and speculative. Since the fixed-term contract was not renewed, no claim for unserved period income could be maintained.
Certificate of Service
A Certificate of Service is a statutory entitlement and the University should issue one within 21 days if not already issued.
The court treated the Certificate of Service as a statutory entitlement independent of the failed heads of claim. As there was no evidence it had been issued, the University was directed to issue it within 21 days. This was the only relief the Claimant obtained.
Legal principles established
#- Constructive dismissal, though not statutorily provided in Kenya, is recognised by the courts; it requires employer conduct constituting a significant breach going to the root of the contract
- Mere failure to renew or revocation of a decision to renew a contract does not satisfy the test for constructive dismissal
- Fixed-term contracts carry no rights or expectations beyond their expiry date
- A contract term may be altered in consultation with the employee under section 10(5) of the Employment Act, and silence in the face of an invitation to object operates as acceptance
Court orders
#- 1.The Respondent to issue a Certificate of Service to the Claimant within 21 days
- 2.The Cause is dismissed with costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olima v Jaramogi Oginga Odinga University of Science and Technology (Cause 19 of 2019) [2022] KEELRC 1503 (KLR)", Case Analysis (2022). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1503/eng@2022-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.