Ombewa v Ezeetec Limited (Appeal E072 of 2022) [2024] KEELRC 776 (KLR)
The bottom line
#Kenya's Employment Court confirmed that when a fixed-term contract ends with the project it was tied to, that is not redundancy and no severance pay is owed.
What this practically means
#Executive summary
#Key legal issues
#Whether termination at the end of a project-tied fixed-term contract constitutes redundancy under Section 40 of the Employment Act
It does not; the contract lapsed by agreement at the end of the project and termination was not at the employer’s initiative
The contract under clause 2 was a fixed-term contract tied to the construction of a 220 kv facility at Ring Road, Nairobi. The parties agreed from inception that the contract would end with the project. Redundancy is termination at the employer’s initiative and involuntary; here termination was voluntary, occurring at the end of the agreed limited term. The Trial Court therefore rightly applied Sections 43 and 45 rather than Section 40, and the Appellant never pleaded redundancy in his Statement of Claim.
Effect of the respondent’s non-participation at trial
Non-participation does not establish the claim; the claimant bears the burden of proof
The appellant argued that the unchallenged claim was watertight. The Court held that the claimant must establish the claim to the accepted standard under Section 47(5) of the Employment Act regardless of the respondent’s absence. The Trial Court was entitled to evaluate the pleadings, contract and documents before it, and its conclusion that termination was based on valid reasons could not be disturbed.
Whether the appellant was denied notice
No; he was offered two weeks’ notice in accordance with a memorandum of understanding with the respondent
The Court found there was evidence the appellant was offered two weeks’ notice under a memorandum of understanding concluded between him and the respondent. Further, given the project-tied fixed-term nature of the contract, notice issues framed under ordinary termination principles did not assist him, since the contract lapsed with the winding up of the project.
Legal principles established
#- Where a fixed-term contract of employment is pegged to the life of a project, it comes to an end with the end of the project; such termination is not redundancy under Section 40 of the Employment Act and requires no notice, consultation with the Labour Office or severance pay unless the contract so provides.
- A respondent’s non-participation at a hearing does not make a claimant’s case unchallengeable; the claimant must still prove the claim to the applicable standard under Section 47(5) of the Employment Act.
Court orders
#- 1.The Appeal is declined
- 2.No order on the costs of the Appeal
- On appeal from
- Chief Magistrate’s Court
- Not stated in judgment
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate’s Court (Employment and Labour Relations Court Act); not expressly cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ombewa v Ezeetec Limited (Appeal E072 of 2022) [2024] KEELRC 776 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/776/eng@2024-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.