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ELRCPartially AllowedELRC Appeal from CMELRC No. E61 of 2020, Mavoko· [2023] KEELRC 3318 (KLR)

Global Apparels (EPZ) Limited v Ng’ang’i (Appeal E026 of 2023) [2023] KEELRC 3318 (KLR)

Employment and Labour Relations Court
20 December 2023
1,049 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 a worker on a three-month contract was not unfairly dismissed when the contract simply expired.

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 Nairobi (Byram Ongaya, Principal Judge) against the judgment of the Principal Magistrate in CMELRC No. E61 of 2020, Mavoko, delivered on 13.10.2022, which found the respondent's termination unfair and unlawful and awarded her one month's salary in lieu of notice (Kshs.14,438/=) and compensation of six months' salary (Kshs.86,628/=), totaling Kshs.101,066/=. The appellant, her former employer, appealed on four grounds, contending that the trial court erred in finding permanent employment when the evidence showed a three-month term contract dated 03.01.2019 lapsing on 25.03.2019; that the respondent adduced no evidence of permanent employment; and that the trial court wrongly shifted the burden of proof. The respondent's claim was that she was orally employed in 2007 as a machine operator at Athi-river and was turned away on 20.12.2019 without notice, a termination letter or a fair hearing, and that she was owed unpaid overtime. The appellant maintained that it engaged staff on short-term contracts during high season and that the respondent's contract lapsed automatically, her dues having been paid upon signing a discharge. Re-evaluating the evidence as a first appellate court, the court held that the contract of service lapsed by effluxion of time, that the respondent could not be trusted on the leave and overtime claims, and that the finding of permanent employment was inconsistent with the exhibited three-month term contract. It found the award of notice pay and compensation contrary to the evidence and unjustified. The appeal was allowed: the lower court judgment and decree were set aside and substituted with dismissal of the suit with costs; the appellant was awarded costs of the appeal; and the Deputy Registrar was directed to return the court file to the Machakos Court's Sub-registry.

Key legal issues

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01

Nature of the employment relationship - permanent or contractual

Holding

The respondent was employed on a three-month term contract which lapsed on 25.03.2019; the finding of permanent employment was erroneous.

Reasoning

The respondent's own pleading and testimony showed she was told to leave in March 2019, consistent with the lapse of the three-month contract. She denied signing the exhibited contract, but the court saw no reason to doubt the signature. The NSSF statement and job card did not establish employment from 2014, and the finding of permanent employment was inconsistent with the exhibited term contract.

p. 3
02

Award of notice pay and compensation for unfair termination

Holding

The trial court's award of one month's salary in lieu of notice and six months' compensation was contrary to the evidence and unjustified.

Reasoning

Because the contract lapsed by effluxion of time and the parties separated per the term contract, there was no unfair or unlawful termination capable of grounding notice pay or compensation. The respondent also lacked credibility on leave and overtime claims, having confirmed in cross-examination that she had been paid leave and overtime.

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03

Role of the first appellate court

Holding

The first appellate court re-evaluates the evidence and may disturb the trial court's conclusions where they are shown to be mistaken or unjust.

Reasoning

The court stated the standard of review on a first appeal: re-evaluate the evidence while bearing in mind that it neither saw nor heard the witnesses, and only disturb the trial decision if it misdirected itself and arrived at conclusions that were not just or correct. The court found such misdirections in the trial court's treatment of the term contracts and the burden of proof.

p. 3

Legal principles established

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  • On a first appeal, the court re-evaluates the evidence and arrives at its own conclusions, but will not disturb the trial court's decision unless it misdirected itself and reached unjust or incorrect conclusions.
  • A fixed-term contract terminates by effluxion of time, and where parties separated upon lapse of the term contract, there is no unfair termination.

Court orders

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  1. 1.The judgment of the lower Court and the decree flowing therefrom is set aside and substituted with dismissal of the suit with costs
  2. 2.The appellant is awarded costs of the appeal
  3. 3.The Deputy Registrar to forthwith return the court file herein to the Machakos Court's Sub-registry
On appeal from
Principal Magistrate's Court, Mavoko (CMELRC No. E61 of 2020)
CMELRC E61 of 2020
Jurisdiction invoked
First appeal from the trial court in employment and labour relations matters (Employment and Labour Relations Court Act jurisdiction; specific provision not stated in the judgment)

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, "Global Apparels (EPZ) Limited v Ng’ang’i (Appeal E026 of 2023) [2023] KEELRC 3318 (KLR)", Case Analysis (2023). ELRC Appeal from CMELRC No. E61 of 2020, Mavoko. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3318/eng@2023-12-20

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