Shivachi v Kenya Institute of Professional Studies (Cause 1277 of 2017) [2024] KEELRC 178 (KLR)
The bottom line
#A Kenyan court ruled that a tutor's temporary fill-in teaching did not extend his expired fixed-term contract, and he failed to prove unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether tutoring as a stopgap after expiry of a fixed-term contract amounted to renewal
It did not; the Claimant was only holding brief until a replacement was found
The one-semester contract lapsed by effluxion of time. The Claimant admitted he was stepping in for a deserting tutor only until a replacement arrived and that he was to sign a new contract but never did. He did not plead legitimate expectation of renewal. The court applied authority that fixed-term contracts are not renewed automatically.
Whether the Claimant proved unfair termination
No; the Claimant tendered no evidence of when, how and by whom employment was terminated
The Claimant's statement made two months after the alleged termination was silent on who terminated and in what circumstances; the alleged call by the Principal emerged only on cross-examination almost five years later with no corroboration. The Respondent consistently denied termination, and under ss.107-109 Evidence Act and s.47(5) Employment Act the burden lay on the Claimant, which he failed to discharge.
Entitlement to salary for April 2017 and certificate of service
Claimant entitled to unpaid salary for classes tutored while holding brief and to a certificate of service under s.51 Employment Act
Having found the Claimant actually tutored classes in April 2017 while holding brief for the deserted tutor, remuneration being based on Class Attendance Sheets, the court found those prayers merited. A certificate of service is a statutory entitlement under s.51 of the Employment Act.
Legal principles established
#- Fixed term contracts carry no rights, obligations or expectations beyond the date of expiry and will not be renewed automatically even where a renewal clause exists
- The party alleging the existence of a fact must establish it by credible evidence (ss.107, 108, 109 Evidence Act)
- Under Section 47(5) of the Employment Act the employee bears the burden of proving unfair termination
Court orders
#- 1.Judgment entered for the Claimant for any amount unpaid for the classes tutored while holding brief for the deserting tutor
- 2.Certificate of service to be issued within 30 days
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance claim; no specific constitutional provision invoked for jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shivachi v Kenya Institute of Professional Studies (Cause 1277 of 2017) [2024] KEELRC 178 (KLR)", Case Analysis (2024). Cause No 1277 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/178/eng@2024-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.