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ELRCPartially AllowedCause No E020 of 2021· [2024] KEELRC 218 (KLR)

Karithi v Karumo Technical Training Institute (Cause E020 of 2021) [2024] KEELRC 218 (KLR)

Employment and Labour Relations Court
9 February 2024
OMOnismus N Makau
1,714 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employee who declines a contract renewal cannot claim unfair redundancy — he got only a certificate of service.

What this practically means

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Executive summary

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The claimant sued the respondent institute for unfair and unlawful termination of employment, seeking a declaration, terminal dues including salary arrears from April 2020 to January 2021, severance pay, general damages, a certificate of service, costs and interest. He had been engaged on successive one-year fixed-term contracts, the last of which lapsed on 31 January 2020. The respondent denied unfair termination, asserting the contract lapsed and was never terminated, that Covid-19 school closures intervened, and that renewal offers were made in May and eventually November 2020, which the claimant declined. The court framed two issues: whether the claimant was unlawfully laid off, and whether he was entitled to the reliefs sought. It found the burden of proving redundancy rests on the claimant and that his own admission that he applied for renewal of his contract in May 2020 and declined the offer of renewal in November 2020 contradicted the redundancy claim. The court was satisfied the contract simply lapsed and the employment ended when the claimant rejected the renewal offer. Accordingly, the claims for a declaration, damages for unlawful redundancy, salary arrears and severance all failed, as the claimant was not in employment during the period claimed. The sole relief granted was a certificate of service, awarded as prayed. Costs were not awarded to the claimant as the suit had substantially failed. Judgment was delivered at Nyeri on 9 February 2024 via Teams with the parties' consent, waiving compliance with Rule 28(3) of the ELRC Procedure Rules.

Key legal issues

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01

Whether the claimant was unlawfully laid off

Holding

The claimant was not laid off; his fixed-term contract lapsed on 31 January 2020, and although invited to apply for and later offered renewal, he declined. Redundancy was not proved.

Reasoning

Section 40(1) of the Employment Act requires notice and terminal benefits for redundancy. The claimant bore the burden of proving redundancy but admitted applying for contract renewal on 7 May 2020 and declining the renewal offered on 9 November 2020 because salary for the lockdown period was withheld. The court found the respondent's evidence that the contract lapsed and Covid-19 closures intervened convincing, and held the employment ended by lapse and refusal of renewal, not redundancy.

p. 4
02

Whether the claimant is entitled to the reliefs sought

Holding

Only the claim for a certificate of service succeeded; damages for unlawful redundancy and salary arrears for April 2020 to January 2021 were refused, and costs were denied.

Reasoning

Because the finding was that no redundancy occurred, damages for unlawful redundancy necessarily failed. Salary arrears failed because the claimant was not in employment during the period claimed. However, statutory entitlement to a certificate of service is independent of the manner the employment ended and was granted as prayed. Since the suit substantially failed, costs were not awarded to the claimant.

p. 4

Legal principles established

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  • The burden of proving redundancy lies on the claimant alleging it.
  • Where a fixed-term contract lapses and the employer offers renewal which the employee declines, there is no unfair termination or redundancy.

Court orders

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  1. 1.A certificate of service for the period worked to be issued to the claimant as prayed
  2. 2.Claim for damages for unlawful redundancy dismissed
  3. 3.Claim for salary arrears April 2020 to January 2021 dismissed
  4. 4.Costs of the suit not awarded to the claimant, the suit having substantially failed

Authorities

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Legislation

  • Employment Actsection 40(1)
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)

Cases cited (1)

  • Douglas Omunyiri Otungu v Board of Trustees, Redeemed Christian Church of God
    [2022] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (suit for unfair termination and terminal dues)

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, "Karithi v Karumo Technical Training Institute (Cause E020 of 2021) [2024] KEELRC 218 (KLR)", Case Analysis (2024). Cause No E020 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/218/eng@2024-02-09

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