Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedAppeal No E002 of 2022· [2023] KEELRC 3087 (KLR)

Riley Falcon Security Services v Adhiambo (Appeal E002 of 2022) [2023] KEELRC 3087 (KLR)

Employment and Labour Relations Court
30 November 2023
CBChristine N. Baari
2,767 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that repeatedly renewing a fixed-term contract for ten years creates a right to notice before non-renewal.

What this practically means

#

Executive summary

#
This is a first appeal to the Employment and Labour Relations Court at Kisumu against a judgment of the subordinate court (Hon. S. N Telewa) delivered on 8th December 2021, which had awarded the Respondent, a former security guard, one month's salary in lieu of notice, 12 months' compensation for unfair termination, house allowance, salary underpayment and costs. The Trial Court had found the Respondent was declared redundant without procedural compliance. On appeal, the employer contended the fixed term contract lapsed by effluxion of time on 28th February 2019 and that the house allowance and underpayment claims were statute barred or already paid. Judge Christine N. Baari reappraised the evidence as a first appellate court. She found the Trial Court erred in characterising the separation as redundancy, but held that the employer's continuous renewal of successive fixed term contracts for close to ten years created a reasonable expectation of renewal, obliging it to issue notice of non-renewal; failure to do so rendered the termination unfair. She upheld the one month's salary in lieu of notice, but reduced the 12 months' compensation to four months because the Trial Court gave no reasons for the maximum award as required by Section 49(4) of the Employment Act. The house allowance award was set aside in its entirety on the strength of pay slips, and the underpayment award was limited to the period from September 2017 onward, the rest being barred by Section 90. The appeal partly succeeded, with the Appellant bearing half the costs of the lower court suit and each party bearing their own costs of the appeal.

Key legal issues

#
01

Whether the Respondent's separation amounted to redundancy

Holding

The Trial Court erred in holding the Respondent was declared redundant; the circumstances did not support a redundancy situation

Reasoning

Redundancy under the Employment Act is loss of employment through no fault of the employee, at the employer's initiative, where services are not needed or through abolition of office. Here the Respondent worked past the contract end date, fell ill, and on resuming duty was assigned no duties. These facts did not support a redundancy situation.

p. 4
02

Whether the fixed term contract lapsed by effluxion of time or carried a reasonable expectation of renewal

Holding

Continuous renewal for close to ten years created a reasonable expectation of renewal; the employer was obliged to issue notice of non-renewal

Reasoning

Although fixed term contracts carry no expectations beyond expiry, the employer had renewed the Respondent's contracts continuously for close to ten years. Applying the SA Rugby and Mediterranean Woollen Mills principles, this conduct created a reasonable expectation of renewal, imposing an obligation to give notice of non-renewal. Failure to do so rendered the termination unfair.

p. 5
03

Whether the award of house allowance was justified

Holding

Set aside in its entirety as pay slips proved house allowance was paid

Reasoning

The pay slips produced in evidence proved that the Respondent was paid house allowance throughout her employment. The Trial Court gave no reasons for the award of Kshs. 61,248.40 and the claim was in any event unjustified on the evidence.

p. 6
04

Whether the underpayment claim was statute barred

Holding

Only the claim from September 2017 onwards was valid; the rest was barred by Section 90 of the Employment Act

Reasoning

The claim was filed in September 2019. Under Section 90 of the Employment Act, claims beyond three years preceding the filing are time barred. The court therefore agreed with the Appellant that claims from 2009 to 2017 were statute barred, and substituted an award of Kshs. 86,053.72.

p. 6

Legal principles established

#
  • Continuous renewal of successive fixed term contracts for close to ten years creates a reasonable expectation of renewal, obliging the employer to issue notice of non-renewal; failure to do so renders the termination unfair.
  • A fixed term contract carries no rights, obligations or expectations beyond the date of expiry, but a reasonable expectation of renewal may arise from employer assurances or conduct despite a clause excluding it.
  • An award of the maximum 12 months' compensation must be justified on sound judicial principles under Section 49(4) of the Employment Act.
  • A first appellate court must reappraise the evidence adduced before the Trial Court in its entirety and make its own conclusions.

Court orders

#
  1. 1.The award of one-month salary in lieu of notice is upheld at Kshs. 14,865.53/-
  2. 2.The award of 12 months' salary is set aside and substituted with an award of Four (4) months' salary as compensation for the unfair termination at Kshs. 59,462.12/-
  3. 3.The award of house allowance is set aside in its entirety
  4. 4.The award of Kshs. 278,840.30 on account of under payment is set aside and substituted with an award of Kshs. 86,053.72/-
  5. 5.The Appellant will bear half the costs of the suit before the lower court, and each party will bear their own costs of this appeal

Authorities

#

Legislation

  • Employment ActSection 40(1)(f)
  • Employment Act, 2007Section 45(2)(c)
  • Employment ActSection 45(4)(b)
  • Employment Act, 2007Section 49(4)
  • Employment ActSection 90

Cases cited (10)

  • Kenya Airway Limited Versus Aviation and Allied Workers Union Kenya and 3 others
  • Bernard Wanjohi Muriuki Versus Kirinyaga Water and Sanitation Company Limited & Another
    (2012)
  • Josephat Ingosi Andulu v. Nightinghale Rukuba
    (2014)
  • Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Selle & Ano. Vs. Associated Motor Boat Co. Ltd
    (1968) EA 123
  • Registered Trustees of the Presbyterian Church of East Africa & Another vs. Ruth Gathoni Ngotho
    [2017] eKLR
  • SA Rugby (Pty) Ltd v CCMA & others
    (2006) 1 BLLR 27 (LC)
  • Keen Kleeners Limited v Kenya Plantation and Agricultural workers' Union
    (Civil Appeal 101 of 2019) [2021] KECA 352 (KLR) (17 December 2021)
  • Mediterranean Woollen Mills (Pty) Ltd. v South African Clothing and Textile Workers' Union
    (143/96) [1998] ZASCA 11
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
On appeal from
Subordinate Court (Trial Court, Honourable S. N Telewa)
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's employment judgment

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Riley Falcon Security Services v Adhiambo (Appeal E002 of 2022) [2023] KEELRC 3087 (KLR)", Case Analysis (2023). Appeal No E002 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3087/eng@2023-11-30

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