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ELRCPartially AllowedEmployment and Labour Relations Court Cause dated 17th February 2017 (Memorandum of Claim dated 17th February 2017)· [2024] KEELRC 2068 (KLR)

Ondora v Makori & 6 others (Being sued as the registered officials/leaders of the Seventh-Day Adventist Church, East Kenya Union Conference (E.K.U.C), Home Health Education Service) (Employment and Labour Relations Cause 346 of 2017) [2024] KEELRC 2068 (KLR)

Employment and Labour Relations Court
31 July 2024
3,562 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment Court ruled a fixed-term contract simply expires on its end date—no termination notice needed—though the employee still recovered part of his terminal dues.

What this practically means

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Executive summary

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The Claimant, employed by the 7th Respondent on annual fixed-term contracts, most recently as a Book Depository Assistant at the Kisii Depot for 2016, sued for Kshs 519,888/- being unpaid December 2016 salary, terminal benefits, interest and costs, alleging unfair termination over an alleged stock loss at the Kisii Depot. The Respondents defended that the contract expired by effluxion of time on 31st December 2016 and counterclaimed for a balance of Kshs 12,388.75/- of the stock shortfall allegedly not recovered. The court framed two issues: whether the employment was unfairly terminated, and whether the Claimant was entitled to the remedies sought. Holding that the material contract was a fixed-term contract expiring on 31st December 2016 (the printed 2013 date being a typographical error), the court found the contract lapsed automatically and no notice or section 41 procedural fairness was required; the unfair termination claim was dismissed. On dues, the court found on a balance of probabilities that the stock shortage of Kshs 153,993.49 arose from the Claimant's and his Manager's dishonesty, justifying a half-share deduction of Kshs 76,996.75 under section 19(1)(d) of the Employment Act, rendering the counterclaim unnecessary and dismissing it. Judgment was entered for the Claimant for Kshs 22,271.25/- after deductions, being December 2016 salary, December 2016 commuter allowance, gratuity and bonus; a Certificate of Service within 30 days; interest at court rates; and each party to bear their own costs.

Key legal issues

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01

Whether the Claimant's employment was unfairly terminated

Holding

No - the fixed-term contract expired by effluxion of time on 31st December 2016 and was not renewed; no notice or procedural fairness under section 41 was required

Reasoning

The court found the material contract was a fixed-term contract running 1st January 2016 to 31st December 2016, treating the printed 2013 expiry date as a typographical error. Citing Amatsi Water Services and National Water Conservation, fixed-term contracts terminate automatically on the sunset date unless extended. The execution date of 23rd March 2016 was irrelevant to the end date. The unfair termination claim therefore failed.

p. 5
02

Whether the deductions from the Claimant's terminal dues were lawful

Holding

Yes - half the proved stock shortfall (Kshs 76,996.75) was lawfully deducted under section 19(1)(d) of the Employment Act

Reasoning

The court found, on a balance of probabilities, that the stock shortage of Kshs 153,993.49 arose from the Claimant's and his Manager's dishonesty, evidenced by the signed Stock Taking Report of 19th January 2016 and the 25th November 2016 audit report signed by the Claimant. The apportionment of liability half to the Manager was justified, and the statutory deduction cap was respected, rendering the counterclaim unnecessary.

p. 7
03

Whether the Claimant was entitled to the terminal dues and certificate of service

Holding

Yes - December 2016 salary, December 2016 commuter allowance, gratuity at 10% of yearly salary, and yearly bonus, less lawful deductions; plus a Certificate of Service under section 51

Reasoning

The Respondents admitted entitlement to gratuity and bonus; gratuity was computed at 10% of yearly salary per Clause 6. The commuter allowance claim was limited to December 2016 as the only uncontroverted proof related to that period. Section 51 of the Employment Act entitled the Claimant to a Certificate of Service.

p. 7

Legal principles established

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  • Fixed-term contracts lapse automatically at the appointed time; no notice of termination is required before the lapse date and section 41 procedural fairness is inapplicable to expiry on the appointed date
  • Under section 19(1)(d) of the Employment Act, an employer may deduct from wages an amount equal to a shortage of money arising through the employee's negligence or dishonesty, capped at two-thirds of monthly wages
  • An employee who signs a stock-taking report acknowledging a shortage cannot later disown its contents as mere confirmation of presence

Court orders

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  1. 1.The Claimant be paid salary for December 2016 of Kshs 30,240/-, commuter allowance for December 2016 of Kshs 2,500/-, yearly gratuity of Kshs 36,288/- and yearly bonus of Kshs 30,240/-, total Kshs 99,268/-, less Kshs 76,996.75/-, leaving Kshs 22,271.25/-
  2. 2.The Claimant be issued with a Certificate of Service within 30 days of the Judgment
  3. 3.Interest on the award at court rates from the date of judgment until payment in full
  4. 4.Each party to bear their own costs
  5. 5.The Claimant's claim of unfair termination is dismissed
  6. 6.The Respondents' counterclaim is dismissed

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 19(1)(d)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 51
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (7)

  • Kenfreight E.A. Limited v Benson K. Nguti
    Civil Appeal No. 31 of 2015
  • Kenya Plantation and Agricultural Workers Union v James Finlay (K) Limited
  • James Angawa Atande & 10 others v Judicial Service Commission
    Petition 32 of 2016
  • Amatsi Water Services Company Limited v Francis Shire Chachi
    [2018] eKLR
  • National Water Conservation & Pipeline Corporation v Jayne Kanini Mwanza
    Civil Appeal No. 178 of 2014 (UR)
  • Bernard Wanjohi Muriuki v Kirinyaga Water And Sanitation Company Limited & Another
    [2012] eKLR
  • SA Rugby (Pty) Ltd v CCMA & Others
    (2006) 27 ILJ 1041 (LC)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and 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, "Ondora v Makori & 6 others (Being sued as the registered officials/leaders of the Seventh-Day Adventist Church, East Kenya Union Conference (E.K.U.C), Home Health Education Service) (Employment and Labour Relations Cause 346 of 2017) [2024] KEELRC 2068 (KLR)", Case Analysis (2024). Employment and Labour Relations Court Cause dated 17th February 2017 (Memorandum of Claim dated 17th February 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2068/eng@2024-07-31

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