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ELRCDismissedMemorandum of Claim dated 13th February, 2018· [2023] KEELRC 2757 (KLR)

Bitutu v Riley Services (Cause 173 of 2018) [2023] KEELRC 2757 (KLR)

Employment and Labour Relations Court
24 October 2023
DMD. K. Njagi Marete
1,701 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that a fixed-term contract simply ends on its expiry date, so letting it lapse is not unfair termination.

What this practically means

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Executive summary

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The claimant, a security guard employed by the respondent on a salary of Kshs.13,000.00 per month, claimed unfair termination following receipt of a letter on 15th September 2017 informing him that his contract would lapse on 25th September 2017. He sought a declaration of unfair termination, twelve months' salary compensation, exemplary damages, and various dues totalling Kshs.248,424/= including salary arrears, leave allowances, severance pay, maternity leave allowances, underpayment, uniform refund and contributions. The respondent denied the claim, asserting the claimant served under variously fixed-term contracts which lapsed on the date of alleged termination by effluxion of time, with no obligation to furnish reasons for non-renewal. The claimant anchored his case on legitimate expectation of renewal, relying on John Nduba v AMREF and Tessa Carlo Omondi. The respondent relied on authority including the Court of Appeal's decision in Transparency International Kenya v Teresa Carlo Omondi holding that the doctrine of legitimate expectation does not arise in renewal of fixed-term contracts and non-renewal cannot constitute unfair termination. The court framed four issues, held that a fixed-term contract is sui generis and does not offer legitimate expectations of renewal, found there was no termination as the contract lapsed by effluxion of time, and consequently dismissed the claim with each party bearing their own costs.

Key legal issues

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01

Whether there was a termination of employment of the claimant by the Respondent

Holding

There was no termination; the fixed-term contract lapsed by effluxion of time on its own terms

Reasoning

The claimant argued legitimate expectation of renewal relying on Tessa Carlo Omondi. The respondent relied on authority that fixed-term contracts carry no expectations beyond expiry and need not be renewed with reasons. The court accepted the respondent's position that a fixed-term contract comes to an end on the set date unless extended per its terms, so the claimant's claim on legitimate expectation fails.

p. 5
02

Whether the termination, if at all, was wrongful, unfair and unlawful

Holding

This issue did not arise as there was no termination

Reasoning

Having found that the employment relationship ended by effluxion of the fixed term rather than an act of termination, the question of unfair, wrongful or unlawful termination did not require determination. All remaining issues, including entitlement to relief, fell by the wayside.

p. 5
03

Whether the claimant is entitled to the relief sought

Holding

No relief was granted as the claim failed at the first issue

Reasoning

Since the court found no termination of employment, the claimant's prayers for declarations, compensation, damages, salary arrears, leave allowances, severance and other dues could not be sustained. The entire claim was dismissed.

p. 5

Legal principles established

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  • A fixed term contract is sui generis and does not generate legitimate expectations of renewal; it lapses by effluxion of time absent extension in the contract terms

Court orders

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  1. 1.The claim is dismissed.
  2. 2.Each party bears their own costs of the cause.

Authorities

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Legislation

  • Employment Act

Cases cited (8)

  • John Nduba v Africa Medical and Research Foundation (AMREF Health Africa)
    [2020] eKLR
  • Tessa Carlo Omondi v Transparency International Kenya
    [2017] eKLR
  • National Water Conservation & Pipeline Corporation vs Jayne Kanini Mwanza
    Civil Appeal No. 178 of 2014 (UR)
  • Amatsi Water Services Company Ltd versus Francis Shire Chachi
    [2018] eKLR
  • Bernard Wanjohi Muriuki vs Kirinyaga Water And Sanitation Company Limited & Another
    [2012] eKLR
  • Registered Trustees of the Presbyterian Church of Each Africa (PCEA) & another
    [2017] eKLR
  • Transparency International Kenya versus Teresa Carlo Omondi
    Civil Appeal No. 81 of 2018 (unreported)
  • Margaret A Ochieng v National Water Conservation & Pipeline Corporation
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination dispute under the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bitutu v Riley Services (Cause 173 of 2018) [2023] KEELRC 2757 (KLR)", Case Analysis (2023). Memorandum of Claim dated 13th February, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2757/eng@2023-10-24

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