African Centre for Women Information and Communictations Technology v Ochieng (Appeal E176 of 2022) [2024] KEELRC 1929 (KLR)
The bottom line
#Kenya's Employment Court confirmed that employers must prove every condition for ending a fixed-term contract, not just that it expired.
What this practically means
#Executive summary
#Key legal issues
#Justification for termination of a fixed-term contract
The Appeal was declined; the Trial Court correctly found the termination unfair and unlawful as the Appellant proved only expiry of the 3 months, not unsatisfactory performance or lack of funds, and did not comply with the contractual 30-day notice of discontinuation
The extended contract conditioned continuation on expiry of the term, satisfactory performance and availability of funds, with communication of discontinuation at least 30 days prior. The Appellant established only the expiry of the term and adduced no evidence on performance, funds or the 30-day communication. Sections 43 and 45 of the Employment Act therefore were not satisfied, and the finding of unfair termination stood.
Exceptions to the rule that fixed-term contracts carry no expectancy of renewal
The Trial Court correctly identified and applied the exceptions; the contract here was neither automatically renewable nor automatically terminable
The court affirmed that while the general rule is that fixed-term contracts need not be renewed, expectancy may arise from the contract's terms or the employer's conduct, or where non-renewal is motivated by ill-will or countervailing circumstances. The specific contract imposed conditions precedent to non-renewal which the Appellant did not meet.
Pregnancy discrimination and maternity leave (Cross-Appeal)
The Cross-Appeal was declined; the Respondent did not apply for maternity leave, never notified the Appellant of the birth, and did not rebut the Appellant's evidence
The Trial Court found, on unrebutted evidence, that no maternity leave application was made and no notification of birth given. Further, granting 3 months' maternity leave on a 3-month contract extending beyond its expiry would be incoherent. The pregnancy discrimination claim therefore failed on the facts, and the Trial Court's reasoning was not faulted.
Legal principles established
#- Fixed-term contracts carry no expectancy of renewal, but exceptions exist where the contract or the employer's conduct creates expectancy of renewal, or where non-renewal is actuated by ill-motive or countervailing circumstances
- Fixed-term contracts must be read individually; contractual modes of termination and non-renewal, non-compliance with which taints the termination, cannot be applied across the board
- An employer relying on a contractual mode of separation must prove compliance with it; failure to do so fails the test of justification under Sections 43 and 45 of the Employment Act
Court orders
#- 1.The Appeal is declined
- 2.The Cross-Appeal is declined
- 3.No order on the costs
- On appeal from
- Trial Court (Employment and Labour Relations Court at first instance)
- Not stated
- Jurisdiction invoked
- Appellate jurisdiction over the Trial Court's judgment under the Employment and Labour Relations Court (appeal from a first-instance ELRC judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "African Centre for Women Information and Communictations Technology v Ochieng (Appeal E176 of 2022) [2024] KEELRC 1929 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1929/eng@2024-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.