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ELRCPartially AllowedMombasa ELRC Appeal (SRMCC No 181 of 2019)· [2023] KEELRC 1257 (KLR)

East Africa Sea Food Limited v Mwazito (Appeal E013 of 2020) [2023] KEELRC 1257 (KLR)

Employment and Labour Relations Court
20 April 2023
MMM Mbarũ
1,898 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that when a fixed-term contract ends on its stated date, the employer owes no notice or compensation — the job simply ends.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa against the judgment in Mombasa SRMCC No 181 of 2019 delivered on November 26, 2019, in which the trial magistrate found unfair termination of employment and awarded the respondent, a driver employed on successive fixed-term contracts (the last running from September 1, 2017 to August 31, 2018), notice pay and three months' salary as compensation. The appellant employer appealed on 15 grounds, contending the contract expired on its own terms on August 31, 2018, so no notice was due and no compensation payable. The respondent maintained he had a legitimate expectation of renewal given the history of renewals, and that the probationary contracts of three months offended Section 37 of the Employment Act. The court, exercising its first appellate duty to re-evaluate the whole evidence per Selle v Associated Motor Boat Co, held that under Section 10(3)(c) of the Act a fixed-term contract with a start and end date is self-executing and lapses by effluxion of time without notice, and that such a contract creates no legitimate expectation of renewal, following the Court of Appeal's decision in Transparency International Kenya v Teresa Carlo Omondi and other authorities. Repeated renewals do not convert a fixed-term contract into full-time employment under Section 37. The trial court's finding of unfair termination lacked legal foundation, and the appeal was allowed with the trial judgment and award set aside in their entirety, each party bearing its own costs of both the appeal and the trial court.

Key legal issues

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01

Whether non-renewal of a fixed-term contract amounts to unfair termination requiring notice

Holding

No. A fixed-term contract lapses by effluxion of time on its end date without creating any expectation of renewal or obligation of notice.

Reasoning

Section 10(3)(c) of the Employment Act contemplates fixed-term contracts with a start and end date. The Court of Appeal in Transparency International Kenya v Teresa Carlo Omondi held that such contracts create no legitimate expectation of renewal and non-renewal is not unfair termination. The respondent's last contract had a start and end date with no automatic renewal clause; it was self-executing.

p. 3
02

Whether repeated renewals convert a fixed-term contract into full-time employment under Section 37 of the Act

Holding

No. Renewals of fixed-term contracts do not create an automatic expectation of renewal or convert the contract into full-time employment.

Reasoning

Relying on Amatsi Water Services Company v Francis Shire Chachi and Keen Kleeners Limited v Kenya Plantation and Agricultural Workers' Union, the court held that a fixed-term contract terminates on its sunset date unless extended per its terms, and cannot be automatically converted to full-time employment merely because it was renewed severally.

p. 4

Legal principles established

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  • A fixed-term employment contract does not create a legitimate expectation of renewal; non-renewal is not unfair termination warranting compensation
  • A fixed-term contract is self-executing and lapses on the end date without the need for notice
  • A fixed-term contract cannot be converted into full-time employment merely because it has been renewed severally

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment and award of the trial court is set aside in its entirety
  3. 3.Each party shall bear own costs of the appeal and of the trial court

Authorities

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Legislation

  • Employment Act, 2007Section 10(3)(c)
  • Employment Act, 2007Section 37

Cases cited (12)

  • Estrange v F Graucob Ltd
    (1934) 2 KB 394
  • Margaret A Ochieng v National Water and Pipeline Corporation
    [2014] eKLR
  • Teresa Carlo Omondi v Transparency International – Kenya
    [2017] eKLR
  • Rajab Barasa & 4 Others v Kenya Meat Commission
    [2016] eKLR
  • Oshwal Academy (Nairobi) & another v Indu Vishwanath
    Civil Appeal No 125 of 2011 [2015] eKLR
  • Kenya Union of Commercial Food and Allied Works v Meru North Farmers Sacco Limited
    [2013] eKLR
  • Selle & another v Associated Motor Boat Co Ltd & others
    [1968] EA 123
  • Peters v Sunday Post Limited
    [1958] EA
  • Transparency International Kenya v Teresa Carlo Omondi
    Civil Appeal No. 18 of 2018 [2023] eKLR
  • Margaret A Ochieng v National Water Conservation & Pipeline Corporation
    [2014] eKLR
  • Amatsi Water Services Company v Francis Shire Chachi
    [2018] eKLR
  • Keen Kleeners Limited v Kenya Plantation and Agricultural Workers' Union
    (Civil Appeal 101 of 2019) [2021] eKLR
On appeal from
Senior Resident Magistrate's Court, Mombasa
SRMCC No 181 of 2019
Jurisdiction invoked
First appellate jurisdiction over the trial magistrate's judgment (appeal from Mombasa SRMCC No 181 of 2019)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "East Africa Sea Food Limited v Mwazito (Appeal E013 of 2020) [2023] KEELRC 1257 (KLR)", Case Analysis (2023). Mombasa ELRC Appeal (SRMCC No 181 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1257/eng@2023-04-20

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