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ELRCDismissedELRC Cause No. E172 of 2021· [2024] KEELRC 2510 (KLR)

Kinyua v Smollan Kenya Limited (Cause E172 of 2021) [2024] KEELRC 2510 (KLR)

Employment and Labour Relations Court
18 October 2024
OKOcharo Kebira
3,625 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that a fixed-term contract that simply expired is not an unfair termination, dismissing all the employee's claims.

What this practically means

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Executive summary

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The Claimant, formerly a field sales representative of the Respondent engaged from August 2017 on successive fixed-term contracts, sued after his last contract (dated 15th July 2019, expiring 30th June 2020) was not renewed. He alleged the non-renewal was due to a permanent disability arising from a February 2018 road accident suffered in the course of duty, and claimed salary in lieu of notice, gratuity, 12 months' compensation for unfair non-renewal, exemplary damages for disability discrimination, constitutional damages, general damages, past and future medical expenses, and group life insurance compensation. The Respondent maintained the contract lawfully lapsed by effluxion of time, that non-renewal resulted from reduced business due to COVID-19, that a DOSH assessment found no permanent disability, and that medical bills were met under its medical cover and NHIF. The court framed two issues: whether the termination was wrongful, unfair and unlawful, and whether the Claimant was entitled to the reliefs sought. It held the employment ended by effluxion of time, not termination; the Claimant pleaded no legitimate expectation of renewal; and he failed to prove either a disability or discrimination on that ground. Each monetary relief was refused: notice pay was inapplicable to a fixed-term contract, gratuity was not contractually provided, section 49 compensation required proof of unfair termination, and the medical claims were unproven special damages. The entire suit was dismissed with no order as to costs.

Key legal issues

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01

Whether the non-renewal of the fixed-term contract amounted to unfair, wrongful or unlawful termination on account of disability

Holding

The contract lapsed by effluxion of time on 30th June 2020; there was no termination and no discrimination was proven

Reasoning

The contract of 15th July 2019 expressly provided a lapse date of 30th June 2020. The Claimant did not assert legitimate expectation of renewal. The Respondent renewed his contract after the accident and the COVID-19 business downturn explained the non-renewal. The Claimant also failed to prove he had a disability, a prerequisite to a discrimination claim.

p. 7
02

Whether the Claimant proved disability and discrimination

Holding

No; evidence on disability was wanting, with the DOSH assessment finding no permanent disability

Reasoning

The court found that apart from general allegations, the Claimant did not prove the non-renewal was influenced by his alleged disability. It made no sense that an employer who extended the contract a year and a half after the accident would then decline to renew it discriminatorily.

p. 6
03

Whether the Claimant was entitled to the monetary reliefs claimed

Holding

None of the reliefs were granted; each failed for want of contractual or statutory basis or failure to plead and prove special damages

Reasoning

Salary in lieu of notice was unavailable for a fixed-term contract; gratuity lacked contractual provision; section 49 compensation required proof of unfair termination; and medical and future medical claims were special damages not specifically proved, with evidence showing bills were met by the Respondent's medical cover or NHIF.

p. 7

Legal principles established

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  • Where a fixed-term contract ends by effluxion of time, an employee can only challenge the non-renewal through a claim based on legitimate expectation, which must be established on recognised conditions
  • A party alleging discrimination on account of disability must first prove the disability before demonstrating discrimination
  • Gratuity is a contractual, not statutory, benefit and is not payable absent a contractual provision
  • Future medical expenses and incurred medical expenses are special damages that must be specifically pleaded and proved

Court orders

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  1. 1.The Claimant's case is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 27(4)(5), 28, 29(d) and (f), 41, 47, 50, 159(2)(d), 48
  • Employment Act, 2007Section 35(6), Section 49(1)(c)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (3)

  • Margaret A. Ochieng v Nairobi Water Conservation and Pipeline Corporation
    [2014] eKLR
  • Stephen M. Kitheka v Kevita International Limited
    [2018] eKLR
  • Joseph Mutune Makau v Directline Assurance Company Limited
    [2022] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations dispute)

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, "Kinyua v Smollan Kenya Limited (Cause E172 of 2021) [2024] KEELRC 2510 (KLR)", Case Analysis (2024). ELRC Cause No. E172 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2510/eng@2024-10-18

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