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ELRCPartially Allowed· [2024] KEELRC 462 (KLR)

Haji v Exon Investment Limited (Employment and Labour Relations Cause 12 of 2023) [2024] KEELRC 462 (KLR)

Employment and Labour Relations Court
29 February 2024
4,095 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a fixed term contract ending on its own is not unfair termination, awarding only the admitted unpaid balance.

What this practically means

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Executive summary

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The claimant, employed on two successive one-year fixed term contracts ending 2nd July 2022 as Nakuru workshop manager/road patrol at an agreed salary of Kshs 130,000, sued for unfair termination and various dues. He alleged the respondent permitted him to work beyond the contract period and sent him to Garissa after the contract lapsed, raising a legitimate expectation of renewal; that he was not given notice, reason or a hearing; and that he was underpaid by Kshs 30,000 monthly, unpaid for overtime, rest days, public holidays and untaken leave. The respondent maintained the contract simply lapsed by effluxion of time, that clause 10 excluded automatic renewal and notice, that the Nakuru office closed for financial constraints, and that all dues including Mpesa payments for rest days, public holidays and leave were paid, save an admitted balance of Kshs 65,000 in salary arrears which the claimant refused to collect from his advocates. The court found the claimant had admitted the contract ended and he cleared from employment, that any post-expiry engagement was outside the original contract, and that the legitimate expectation claim failed. The claimant's admissions on notice, final dues, Mpesa payments for rest days and public holidays, and leave taken defeated the remaining heads. Holding that the claimant, as an NSSF member, was under section 35(6) of the Employment Act not entitled to further terminal dues, the court allowed the claim only in part, awarding Kshs 65,000 with costs and interest on that amount from filing until payment in full. Judgment was delivered virtually on 29th February 2024 by Hellen Wasilwa, J.

Key legal issues

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01

Whether refusal to renew a fixed term contract amounts to unfair termination via legitimate expectation

Holding

No - the contract lapsed by its own terms; the claimant's own evidence showed he admitted the contract ended and he cleared from employment; any post-expiry engagement was outside the original contract

Reasoning

The claimant was on successive fixed term contracts whose clause 10 stated they were not automatically renewable. He admitted the second contract lapsed on 2/7/2022, that he cleared from the office, received final dues, and was not entitled to notice. Two renewals do not constitute repeated renewals; there was no express promise of renewal, so the legitimate expectation doctrine did not apply and sections 41, 43 and 45 were not engaged.

p. 8
02

Which dues remained payable to the claimant

Holding

Only the admitted balance of Kshs 65,000/= remained unpaid; all other heads failed on admissions and lack of evidence

Reasoning

The claimant admitted receiving final dues per exhibit 8 and salary arrears, leaving a Kshs 65,000 balance which the respondent admitted and was willing to pay. He admitted receiving Mpesa payments for rest days and public holidays, admitted taking leave, and admitted clause 10 excluded notice. Claims without particulars or evidence could not stand; NSSF membership under section 35(6) barred further terminal dues.

p. 8

Legal principles established

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  • A fixed term contract that lapses by effluxion of time is not terminated unfairly, and engagement beyond the contract period outside the original contract does not amount to implied renewal absent legitimate expectation
  • An employee who admits receipt of final dues leaves only the admitted unpaid balance recoverable
  • A member of NSSF is not entitled to further terminal dues by virtue of section 35(6) of the Employment Act

Court orders

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  1. 1.Award to the claimant of Kshs 65,000/= admitted and unpaid
  2. 2.Costs of the cause to the claimant on the amount awarded
  3. 3.Interest on the amount awarded from the time of filing until payment in full

Authorities

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Legislation

  • Employment Act, 2007section 49(c)
  • Employment Act, 2007sections 41, 43 and 45
  • Employment Act, 2007section 35(6)

Cases cited (7)

  • Teresa Carlo Omondi v Transparency International
    [2017] eKLR
  • Kenya Revenue Authority & 2 others v Darasa Investment Limited
    [2018] eKLR
  • S S Mehat & Sons Limited v Saidi Abedi Mwanyenga
    [2021] eKLR
  • Akinyi & 4 others v Kenya Medical Research Institute [KEMRI] & another
    (Petition E007 of 2023) [2023] KEELRC 2060 (KLR) (30 August 2023)
  • Enid Nkirote Mukire v Kenya Yearbook Editorial Board
    [2022] eKLR
  • Peter Mutune v Yalfa Cargo Logistics
    [2018] eKLR
  • Miraj Bakari, Ali Nzembe & 24 others v Doshi Enterprises Limited
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance labour cause)

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, "Haji v Exon Investment Limited (Employment and Labour Relations Cause 12 of 2023) [2024] KEELRC 462 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/462/eng@2024-02-29

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