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ELRCPartially AllowedCause No 1989 of 2017· [2024] KEELRC 43 (KLR)

Mwanza & another v Manpower Networks Limited (Cause 1989 of 2017) [2024] KEELRC 43 (KLR)

Employment and Labour Relations Court
29 January 2024
2,386 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 when it expires, and workers claiming unfair termination must prove it with actual evidence.

What this practically means

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Executive summary

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The Claimants, loaders engaged by the Respondent, a contractor to Bamburi Cement Ltd, sued on 5th October 2017 alleging unfair termination after receiving a text message on 23rd August 2017 asking them to surrender company property as there was no more work. They claimed severance pay, one month's salary in lieu of notice, August 2017 salary, offi-days, compensation for unfair termination and house allowance, asserting non-compliance with Section 40 of the Employment Act, 2007. The Respondent maintained that the Claimants were piece-rate workers whose renewable fixed term contracts simply expired in August 2017 and that terminal dues were paid. The court found, on the documentary evidence including payslips and NSSF statements which the Respondent did not contest, that the Claimants were employed under fixed term contracts with remuneration pegged at not less than a general worker's minimum wage. Applying Sections 107 and 108 of the Evidence Act, the court held that the Claimants failed to prove the message amounted to unfair termination, reinforced by the Court of Appeal's holding that fixed term contracts carry no expectations beyond expiry. Severance, notice pay, offi-days and compensation were dismissed as unproven. However, because the Respondent adduced no proof of payment of August 2017 dues and neither paid nor provided housing as required by Section 31 of the Employment Act, the court awarded the August 2017 salary if unpaid, house allowance at 15% of the average basic salary for June to August 2017, 50% costs, and interest from the date of judgment.

Key legal issues

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01

Whether termination of the fixed term contracts was unfair

Holding

Claimants failed to prove that the text message of 23rd August 2017 was a termination notice rather than notification of the impending lapse of the contracts; unfair termination was not proved.

Reasoning

The contract was scheduled to end on 31st August 2017 and the message was sent on 23rd August 2017. Neither party produced the actual message, so the court could not infer whether the Respondent unfairly terminated the employment or merely notified the Claimants of the impending lapse and exit terms. Applying Sections 107 and 108 of the Evidence Act, the burden lay on the Claimants, and the finding was reinforced by the Court of Appeal's dictum that fixed term contracts carry no expectations beyond expiry.

p. 5
02

Status of the Claimants' employment - piece-rate or fixed term

Holding

The documentary evidence established fixed term contracts independent of tonnage loaded, with remuneration pegged at not less than a general worker's minimum wage.

Reasoning

The contracts provided for a minimum tonnage equivalent to or above the minimum wage of a general worker, explaining the varying monthly amounts shown in payslips. NSSF statements, payslips, and tax and NHIF deductions confirmed employment. The Respondent did not contest the payslips. The totality of the documentary evidence showed fixed term employment notwithstanding variable pay.

p. 4
03

House allowance entitlement

Holding

House allowance was awarded at 15% of basic salary for the duration of the last contract, as the Respondent neither paid it nor provided housing.

Reasoning

Section 31 of the Employment Act, 2007 obliges an employer to provide housing or a house allowance. RWI admitted the contract made no provision for house allowance. Although clause 7 provided a minimum wage of a general worker, the payslips showed basic salary equal to gross salary with no housing component. The court awarded 15% of the average basic salary for June to August 2017.

p. 6
04

Salary for August 2017

Holding

Awarded because the Respondent tendered no proof that it paid the August 2017 salary or pending dues.

Reasoning

RWI Mr. James Tsuma testified that the August 2017 salary was to comprise terminal dues but admitted he had no evidence of payment, and explained he did not work in accounts. The court therefore awarded the August 2017 salary if the same was not paid.

p. 5

Legal principles established

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  • A fixed term contract carries no rights, obligations or expectations beyond its date of expiry
  • An employer who neither paid August 2017 salary nor provided housing must pay house allowance at 15% of basic salary for the contract period

Court orders

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  1. 1.Salary for August 2017, if unpaid
  2. 2.House allowance at 15% of the basic salary for the duration of the last contract (1st January 2017 to 31st August 2017), basic salary being the average of the months of June, July and August 2017
  3. 3.50% of the costs of this suit
  4. 4.Interest at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 40
  • Employment Act, 2007Section 2
  • Employment Act, 2007Section 18
  • Employment Act, 2007Section 37
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 31
  • Evidence ActSections 107, 108 and 109
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Articles 159(2)(d) and 48

Cases cited (5)

  • Garama Karisa Masha V Krystalline Salt Ltd
    (2016) eKLR
  • Nyevu Sibya Maithyia & 14 others V Krystalline Salt Ltd
    (2017) eKLR
  • Rogoli Ole Manadiegi V General Cargo Services
  • Patrick Lumumba Kimuyu V Prime Fuels (K) Ltd
  • Registered Trustee of Presbyterian Church of East Africa & another V Ruth Gathoni Ngotho-Kariuki
    (2017) eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act, 2007 (Employment and Labour Relations Court)

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, "Mwanza & another v Manpower Networks Limited (Cause 1989 of 2017) [2024] KEELRC 43 (KLR)", Case Analysis (2024). Cause No 1989 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/43/eng@2024-01-29

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