Were v Krishna Chemists (Cause E500 of 2023) [2024] KEELRC 1645 (KLR)
The bottom line
#A Kenyan employer that let a fixed-term employee keep working after expiry owed her notice, and terminating a pregnant worker amounted to unlawful discrimination costing over Kshs. 1.3 million.
What this practically means
#Executive summary
#Key legal issues
#Effect of holding over after expiry of a fixed-term contract
The contract was automatically extended upon continued service; termination on the basis that it had expired was invalid and notice pay was due.
The termination letter dated 1st April 2023 stated the contract had lapsed on 31st January 2023, yet the Respondent kept the Claimant on its payroll, assigned her work and sale targets beyond that date. The Court treated the continued service as an automatic extension, so the purported expiry could not be the true reason for termination and reasonable notice was required.
Pregnancy discrimination
The Respondent discriminated against the Claimant on account of her pregnancy, attracting damages, though not the aggravated damages awarded in GMV.
The Court noted the Respondent was aware of the Claimant's pregnancy status and that as a member of a protected class she was entitled to better treatment. The Claimant had furnished emails notifying the Respondent of her pregnancy, which were not disputed, and the Respondent produced no appraisals evidencing underperformance, supporting the inference that pregnancy motivated the termination.
Housing allowance
The Claimant was entitled to housing allowance at 15% of basic pay for 12 months, absent a contractual provision for consolidated salary.
The Claimant's payslips showed basic pay of Kshs. 77,613/- without any housing allowance, and the contract did not state that the salary was consolidated. Following Ayanna Yonemura v Liwa Kenya Trust, the Court computed housing allowance at 15% of basic pay (Kshs. 11,641.95 monthly) but limited the award to one year as a continuing wrong that should have been pursued promptly.
Legal principles established
#- Where an employee continues to offer service past the alleged lapse date of a fixed-term contract, the contract is deemed automatically extended and cannot be terminated on the ground of expiry without notice.
- An employer who retains an employee in its payroll past contract expiry cannot rely on the lapsed contract as the reason for termination.
Court orders
#- 1.Kshs. 89,254.95 as one month's salary as notice
- 2.Kshs. 139,703.40 being unpaid house allowance for 12 months
- 3.12 months' salary as compensation – Kshs. 1,071,059.40
- 4.Certificate of service
- 5.Interest at court rates on the notice pay from the date of filing suit till payment in full
- 6.Interest at court rates on the house allowance and compensation from the date of judgment till payment in full
- 7.Costs of the suit
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Were v Krishna Chemists (Cause E500 of 2023) [2024] KEELRC 1645 (KLR)", Case Analysis (2024). Cause No E500 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1645/eng@2024-06-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.