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ELRCPartially AllowedMombasa CMELRC E526 of 2023 (Appeal)· [2024] KEELRC 2301 (KLR)

Mweni v Child Welfare Society of Kenya (Appeal E040 of 2024) [2024] KEELRC 2301 (KLR)

Employment and Labour Relations Court
26 September 2024
2,195 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a first appeal from the magistrates' court (Mombasa CMELRC E526 of 2023, decided 15 March 2024) in which the appellant, a caregiver employed by the Child Welfare Society of Kenya from 1 July 2012 on successively renewed one-year fixed-term contracts ending 30 June 2023, challenged the dismissal of her claim for terminal dues. The respondent neither entered appearance nor filed a response before the trial court and did not attend on appeal. The learned magistrate had dismissed the claim, holding that the appellant was on a term contract requiring no notice or reasons, that house allowance was provided, the wage exceeded the minimum under the Wage Orders, the June 2023 salary was covered by a cheque of Ksh.282,149, and pension refunds were not due given NSSF registration. The Employment and Labour Relations Court at Mombasa allowed the appeal in part. It held that although fixed-term contracts carry no expectations beyond expiry, clause (4) of the contract obliged the respondent, before renewal or non-renewal, to assess availability of funds, performance, conduct, productivity and human resource needs. Absent any evidence of adherence to those agreed modalities, the non-renewal amounted to unfair termination, and the magistrate erred in placing the burden under Section 47(5) on the appellant. The court set aside the trial judgment and entered judgment for the appellant: unfair termination declared, compensation of Ksh.100,188 (3 months, moderated because dues were promptly paid), notice pay of Ksh.33,396, and leave pay of Ksh.36,735.60 limited to 18 months under Section 28(4). Claims for June 2023 salary, pension and house allowance were refused, and costs of the appeal and trial proceedings were awarded to the appellant.

Key legal issues

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01

Whether the non-renewal of a fixed-term contract constituted unfair termination

Holding

Yes - the parties had agreed conditions for renewal in clause (4), and the respondent, being absent, produced nothing to show adherence to those conditions

Reasoning

The court held that although fixed-term contracts generally carry no expectations beyond expiry, the specific contract here contained clause (4) requiring renewal to be determined by availability of funds, performance, conduct, productivity and human resource needs. The respondent did not attend or file a response, so there was no evidence of any exercise undertaken before non-renewal. Failure to address those agreed modalities amounted to unfair termination.

p. 4
02

Burden of proof under Section 47(5) of the Employment Act

Holding

The magistrate erred in placing an unfair burden on the appellant where the respondent never appeared to justify the non-renewal

Reasoning

The trial court had dismissed the claim because the appellant failed to discharge her burden. On appeal, the court held that once the claim was filed and the respondent remained absent, requiring the appellant to go beyond her claim to demonstrate the reasons for non-renewal negated the statutory framework and placed an unfair burden on her; there was nothing to justify the termination.

p. 4
03

Quantum of terminal dues

Holding

Notice pay of Ksh.33,396 and 3 months' compensation of Ksh.100,188 awarded; June 2023 salary and pension refused; leave pay limited to 18 months at Ksh.36,735.60

Reasoning

The court found notice pay justified given unfair termination. Compensation was moderated to 3 months because the respondent had promptly paid the dues it found justified, placing it in good standing. June salary was acknowledged as paid in the cheque; the Ksh.200 monthly deduction was NSSF dues payable to the statutory body; and leave was limited to 18 months' accrual absent employer work records.

p. 5

Legal principles established

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  • Where parties agree modalities for renewal of a fixed-term contract, non-adherence to those modalities results in unfair termination even absent a response from the employer
  • Requiring an employee to justify reasons for non-renewal where the employer has not appeared places an unfair burden contrary to Section 47(5) of the Employment Act
  • In the absence of work records, leave claims are limited to 18 months under Section 28(4) of the Employment Act

Court orders

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  1. 1.Judgment in Mombasa CMELRC E0526 of 2023 set aside and judgment entered for the appellant
  2. 2.Declaration that employment was terminated unfairly
  3. 3.Compensation of Ksh.100,188 (3 months)
  4. 4.Notice pay of Ksh.33,396
  5. 5.Leave pay of Ksh.36,735.60
  6. 6.Costs of the appeal and proceedings before the trial court awarded to the appellant

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Employment ActSections 43, 44 and 45
  • Employment ActSection 49
  • Employment ActSection 10(3), 10(6) and 10(7)
  • Employment ActSection 41
  • Employment ActSection 28(4)

Cases cited (6)

  • Henry Kinyiha Kamami v Star Brilliant (EPZ) K Limited
    [2021] eKLR
  • Akinyi & 4 others v Kenya Medical Research Institute (KEMRI) & another
    [2023] eKLR
  • Mbatia v Kirinyaga Water & Sanitation Company (KIRIWASCO)
    (Employment and Labour Relations Cause 851 of 2022) [2023] KEELRC
  • Masiga & 15 others v Menengai Farmers Limited
    (Civil Appeal E069 of 2021) [2022] KEELRC
  • Johnstone Luvisia v Allpack Industries Limited
    [2019] eKLR
  • Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party)
    [2021] eKLR
On appeal from
Magistrates' Court (ELRC), Mombasa
Mombasa CMELRC E526 of 2023
Jurisdiction invoked
First appellate jurisdiction over the trial court's judgment in Mombasa CMELRC E526 of 2023

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, "Mweni v Child Welfare Society of Kenya (Appeal E040 of 2024) [2024] KEELRC 2301 (KLR)", Case Analysis (2024). Mombasa CMELRC E526 of 2023 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2301/eng@2024-09-26

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