Ndungu v Mount Kenya University (Employment and Labour Relations Cause 973 of 2018) [2024] KEELRC 52 (KLR)
The bottom line
#If a Kenyan fixed-term employee keeps working after their contract expires, the law treats them as a month-to-month employee who cannot be dismissed without notice and fair procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the employment ended by effluxion of time on expiry of the fixed term contract on 30/09/2015 or by unlawful termination on 2/1/2016.
The fixed term contract expired on 30/09/2015 but the claimant continued serving until 2/1/2016 on oral, indefinite terms; the employment converted to month-to-month employment under section 35(1)(c), and the termination on 2/1/2016 without notice, valid reason or fair hearing was unlawful and unfair.
The court found the claimant applied for renewal more than two months before expiry, but the respondent neither responded nor expressly or tacitly extended the contract. The claimant nevertheless continued working at Kshs. 100,000/= per month for over three months. Drawing on section 37 and the conversion principles, the post-expiry relationship was a month-to-month contract requiring twenty-eight days' notice. Termination without notice or reason breached sections 35, 36, 41, 45 and 46 of the Employment Act.
Whether the claimant is entitled to the reliefs sought including notice pay, unpaid part-time and industrial attachment salary, leave days and gratuity balance.
The claimant proved terminal dues of Kshs. 811,868/= (one month notice pay, part-time lecture salary, industrial attachment salary, ten days' leave and gratuity balance) and was awarded compensation of three months' salary (Kshs. 360,000/=) under section 49, totaling Kshs. 1,171,868/=.
RW1 conceded under cross-examination that the respondent did not reply to the renewal notice and did not know whether the claimant had submitted claims for industrial attachment and part-time lecture payments. The court found the claimant had proved the unpaid dues. The claimant, having diligently served from 2012 to 2015 and not contributed to the termination, was compensated at three months' salary under section 49(1)(c) and (4).
Legal principles established
#- A fixed term contract with a start and end date is a lawful mode of employment under section 10(3) of the Employment Act, 2007.
- Where an employee continues to serve after expiry of a fixed term contract without any express or tacit agreement for renewal, the employment converts to a month-to-month protected employment terminable only by twenty-eight days' notice under section 35(1)(c) of the Employment Act.
- Termination without notice and without valid reason and a fair hearing violates sections 35(1)(c), 36, 41, 45 and 46 of the Employment Act, 2007 and is unlawful and unfair.
Court orders
#- 1.Judgment entered in favour of the claimant against the respondent in the sum of Kshs. 360,000/= in compensation for unlawful and unfair termination.
- 2.Terminal benefits awarded in the sum of Kshs. 811,868/= comprising one month salary in lieu of notice (Kshs. 120,000/=), unpaid part-time lecture salary (Kshs. 300,000/=), unpaid industrial attachment salary (Kshs. 325,000/=), unpaid leave days (Kshs. 26,667/=) and unpaid balance of gratuity (Kshs. 40,201/=).
- 3.Total award of Kshs. 1,171,868/=.
- 4.Interest at court rates from the date of judgment until payment in full.
- Jurisdiction invoked
- Employment Act, 2007 and sections 35, 36, 41, 45, 46 and 49 thereof; first-instance employment cause before the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndungu v Mount Kenya University (Employment and Labour Relations Cause 973 of 2018) [2024] KEELRC 52 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/52/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.