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ELRCDismissedNot stated in judgment (Memorandum of Claim filed 27th May 2017)· [2024] KEELRC 937 (KLR)

Wafula v Kenya Kazi Services Limited (Cause 951 of 2017) [2024] KEELRC 937 (KLR)

Employment and Labour Relations Court
29 April 2024
JGJacob Gakeri
3,392 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a fixed-term contract ends automatically on its expiry date, so the dismissed employee's unfair termination claim failed.

What this practically means

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Executive summary

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The Claimant sued for unfair termination and terminal dues, alleging he was employed in 2004, injured in an attack on 17th August 2016, and then received notice that his contract would expire on 31st August 2016. He sought a declaration of unfair dismissal, notice pay, salary for August 2016, 12 months' compensation, severance pay for 12 years, accrued leave, a certificate of service, costs and interest. The Respondent contended that the Claimant resigned from the Commercial Department in 2011 and executed a new 5-year fixed term contract expiring 31st August 2016, with all dues paid. The court traced the employment history, finding the Claimant resigned in 2011, was paid final dues including service pay and accrued leave, and entered a self-contained 5-year contract with a new payroll number and probationary period. Applying Sections 41, 43, 44, 45, 47(5) and 10(3)(c) of the Employment Act and authorities on fixed term contracts, the court held that a fixed term contract ends by effluxion of time without any obligation on the employer to give notice or reasons absent a renewal provision, and that the Claimant failed to discharge his burden of proving unfair termination. All reliefs were dismissed except a certificate of service for the post-2017 re-employment period, to be issued within 30 days. The suit was dismissed with each party bearing their own costs. Judgment was delivered virtually at Nairobi on 29th April 2024 by Dr. Jacob Gakeri, J.

Key legal issues

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01

Whether termination of the Claimant's employment was unfair

Holding

Not unfair; the 5-year fixed term contract lapsed on 31st August 2016 by effluxion of time and the Respondent was not obliged to give notice or reasons

Reasoning

The Claimant resigned from the Commercial Department on 8th July 2011 and executed a new 5-year self-contained contract effective 1st September 2011 to 31st August 2016 with no renewal provision, obtaining a new payroll number. Fixed term contracts end on expiry without expectation of renewal. The Claimant failed to prove unfairness under Section 47(5) of the Employment Act, and did not challenge the later 2018 termination.

p. 7
02

Whether the Claimant was entitled to the reliefs sought

Holding

All reliefs dismissed except a certificate of service for the period served after re-employment

Reasoning

Having found no unfair termination, the declaration, notice pay, 12 months' compensation and gross salary claims failed. Salary for August 2016 was evidenced as paid; severance pay is only payable on redundancy; accrued leave was taken or paid off per the final dues statement and leave forms. Only a certificate of service under Section 51 was due.

p. 8

Legal principles established

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  • For termination to be fair there must be both valid and fair reason and fair procedure
  • A fixed term contract ends on its expiry and the employer need not give notice or reasons unless the contract so requires or implies renewal
  • Burden of proving unfair termination rests on the employee

Court orders

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  1. 1.Declaration sought is declined
  2. 2.Prayer for 4 months' salary in lieu of notice is declined
  3. 3.Prayer for salary for August 2016 is dismissed
  4. 4.Prayer for severance pay for 12 years is declined
  5. 5.Prayer for annual leave is dismissed
  6. 6.Prayer for 12 months' compensation and 12 months' gross salary for wrongful dismissal is declined
  7. 7.The Claimant is entitled to another certificate of service for the duration served, to be issued within 30 days
  8. 8.The Claimant's suit is dismissed
  9. 9.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Sections 10(3)(c), 41, 43, 44, 45, 47(5), 51
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Articles 159(2)(d) and 48

Cases cited (6)

  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Apex Steel v Dominic Mutua Mwendo
    (2020) eKLR
  • Bernard Wanjohi Muriuki v Kirinyaga Water & Sanitation & another
    (2012) eKLR
  • Registered Trustee of Presbyterian Church of East Africa & another v Ruth Gathoni Ngotho-Kariuki
    (2017) eKLR
  • Amatsi Water Services Co. Ltd v Francis Shire Chachi
    (2018) eKLR
  • Keen Kleeners Ltd v Kenya Plantation & Agricultural Workers Union
    (2021) KECA 352
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007

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, "Wafula v Kenya Kazi Services Limited (Cause 951 of 2017) [2024] KEELRC 937 (KLR)", Case Analysis (2024). Not stated in judgment (Memorandum of Claim filed 27th May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/937/eng@2024-04-29

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