Kamurasi v Absa Bank Kenya PLC & another (Employment and Labour Relations Cause E612 of 2021) [2023] KEELRC 3229 (KLR)

The court analysed private international law principles (lex loci contractus, lex loci solutionis, lex patriae, lex domicilii) and found that where parties have not chosen a forum, the law of the place of performance applies. The alleged contract with the 2nd Respondent was performed in Kenya, so Kenyan law and forum were the most suitable. However, since both parties were foreign nationals and the contract was allegedly made in Uganda, section 89(3) required attestation by a judicial officer; none was produced, so no contract was proved.

The Employment Act definitions require rendering services for wages paid by the purported employer. The 1st Respondent paid the Claimant's remuneration and procured his work permits. Bonuses are discretionary and cannot establish employment. Consistent with the Court of Appeal's approach in Gladys Muthoni, performing duties that benefit the group does not alter the employment status with the contracting subsidiary. No evidence showed the 1st Respondent acted as agent of the 2nd Respondent in hiring the Claimant.

The court applied the test for repudiation of employment contracts, which turns on objective conduct conveying renunciation of the contract or a fundamental obligation. Signing the contract with the 1st Respondent a month before the assignment contract's expiry signified an intention not to be bound by the Ugandan contracts. The subsequent fixed term contracts were not extensions of the assignment contract, which only Barclays Bank Uganda could extend.

The primary documents evidencing the relationship were the written fixed term contracts, which the court cannot go outside unless ambiguous. The Claimant's suggestion that the fixed terms were a device to circumvent work permit laws was rejected, as accepting it would amount to the court endorsing a scheme designed to evade statute. Banking products were granted at discounted rates under bank policy and were not tied to employment status.

Legitimate expectation arises from an express promise or an established practice. None of the contracts contained a renewal clause; each new contract extinguished prior representations, whether oral or written. The Claimant therefore had no basis to expect renewal, and an employer is entitled to decline a fresh contract on expiry of a fixed term.

There was no redundancy notice, no termination before 31st August 2021, and the Claimant worked until the contract's expiry. Where a contract has an appointed closure date, it closes on that date notwithstanding intervening adverse events. The Claimant was informed by letter of 2nd July 2021 that the contract would lapse by effluxion of time, which discharged the employer's obligation to give reasons.

While a discharge voucher can bar further litigation, this depends on its design and content. Where the signatory expressly records that signing does not waive his right to pursue the matter, the voucher does not close the dispute. The Claimant's annotation, made when the suit was already lodged, was a clear indication of his intent to pursue the dispute.