Njunge v Wilfreight Express Cargo Ltd (Employment and Labour Relations Cause 1044 of 2017) [2024] KEELRC 1759 (KLR)
The bottom line
#A Kenyan court ruled that a fixed-term contract ending on its own is not unfair termination, but the employee still won unpaid house allowance.
What this practically means
#Executive summary
#Key legal issues
#Nature of employment at separation
After the initial two-month contract lapsed, the Claimant served under a fixed-term contract of two years ending 12th March 2017, inferred from email correspondence despite the written contract being untraceable.
The court examined the Claimant's emails of 14th and 20th March 2017, in which she acknowledged the contract was two years with an end date of 12th March 2017 and indicated openness to renewal. Although the written two-year contract could not be produced, the court found the parties' conduct and correspondence demonstrated consensus on a fixed-term arrangement.
Unfair termination
The claim failed because the contract ended by effluxion of time, not termination.
Having found a fixed-term contract that expired on its own terms, the court held that claims for wrongful dismissal or unfair termination are unsustainable, and the statutory protections of procedural fairness under Section 41 and substantive justification under Section 43 cannot be invoked.
House allowance
The Claimant was entitled to house allowance at 15% of basic salary for 24 months, as the appointment letter did not provide for a consolidated salary and the Respondent led no evidence of payment.
Section 31 of the Employment Act obliges the employer to provide accommodation or a reasonable house allowance. The letter of appointment did not state the salary was consolidated, and the Respondent produced no documentary evidence that house allowance was included. Regulation 4 of the Regulation of Wages (General) Order 1982 supplied the 15% formula applied.
Counterclaim for outstanding loan
The Respondent's counterclaim for Kshs. 135,000/- succeeded, the debt being admitted, and was offset against the award.
The Claimant admitted during testimony that she owed Kshs. 135,000/- of a loan advanced for a medical emergency during maternity leave. The court allowed the counterclaim and directed that the amount be offset from the award to the Claimant.
Legal principles established
#- Where a contract of service terminates by effluxion of time, a claim for wrongful dismissal or unfair termination cannot be sustained and statutory procedural fairness and substantive justification do not arise.
- Where an employer does not provide accommodation and the contract does not state that salary is consolidated, the employer must pay house allowance at 15% of basic wage under Regulation 4 of the Regulation of Wages (General) Order 1982.
Court orders
#- 1.The Claimant be paid house allowance of Kshs. 252,000/- less Kshs. 135,000/- outstanding loan, total Kshs. 117,000/-
- 2.The Claimant be issued with a Certificate of Service within 30 days of the Judgment
- 3.Interest on the monetary award at Court rates from the date of judgment until payment in full
- 4.Each party to bear their own costs
- Jurisdiction invoked
- First-instance claim under the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njunge v Wilfreight Express Cargo Ltd (Employment and Labour Relations Cause 1044 of 2017) [2024] KEELRC 1759 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1759/eng@2024-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.