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ELRCDismissedAppeal against Kisii ELRC No. 009 of 2022 (ELRC Appeal, Kisumu)

Kenyanya v Nyangena Hospital Ltd (Appeal E034 of 2024) [2025] KEELRC 1278 (KLR)

Employment and Labour Relations Court
5 May 2025
6,378 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a signed fixed term contract ends automatically on expiry, so the employer owed no compensation beyond untaken leave.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisumu by Josephine Mokobi Kenyanya against the judgment of Hon. P. K. Mutai, Principal Magistrate, dated 4th December 2023 in Kisii ELRC No. 009 of 2022, which had dismissed her claim against Nyangena Hospital Ltd. The appellant, employed from 2015, alleged unfair termination when her employment ended in October 2021, and claimed Kshs. 727,131.23 in terminal dues including salary in lieu of notice, leave, 12 months' compensation, public holidays, rest days and overtime. On appeal she argued that she served under two concurrent contracts (oral and written), that she was coerced into signing a one-year fixed term contract, and that conversion from permanent to fixed term terms was an unfair labour practice. The court, exercising its first appellate duty to re-evaluate evidence, held that the duress and concurrent contracts issues were neither pleaded nor proved; the oral contract merged with the written contract signed on 1st November 2020 after a sensitisation meeting, and the appellant, having signed and served the fixed term contract, was estopped from challenging it. The contract lapsed on 31st October 2021 by effluxion of time, so there was no unfair or unlawful termination and no expectancy of renewal. The trial magistrate had considered the appellant's submissions. The court upheld the trial court's finding on leave but varied the award to Kshs. 27,300 for untaken leave for 2017-2019, and affirmed entitlement to a Certificate of Service. The appeal was dismissed with each party bearing their own costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned trial magistrate disregarded evidence of two concurrent contracts (oral and written) of employment
  2. 2.Whether the signing of the fixed term contract was procured by duress or coercion, amounting to unfair termination or an unfair labour practice
  3. 3.Whether the alteration of employment terms from permanent to fixed term was a unilateral variation amounting to an unfair labour practice
  4. 4.Whether termination of the appellant's employment was unfair or unlawful
  5. 5.Whether the trial court disregarded the appellant's written submissions
  6. 6.Whether the appellant was entitled to the reliefs claimed (salary in lieu of notice, leave, public holidays, rest days, overtime, service pay, compensation)

Key legal issues

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01

Whether the fixed term contract was vitiated by duress

Holding

No duress was pleaded or proved; the appellant accepted and served the contract, and is estopped from raising duress after serving the term

Reasoning

The appellant never pleaded duress in her statement of claim or witness statement; the issue emerged only in re-examination. She could not identify who threatened her or how. Under sections 107-109 of the Evidence Act she bore the burden of proof. She also acquiesced by serving the contract term without complaint, attracting estoppel by conduct. The threat to withhold salary does not amount to duress in law.

p. 6
02

Whether two concurrent contracts (oral and written) existed

Holding

The issue was unpleaded; in any event the oral contract merged with and was discharged by the written contract

Reasoning

Parties are bound by their pleadings and a court cannot pronounce on issues not arising from them. Even considering the point, the oral contract merged into the written contract on 1st November 2020, a legitimate bilateral mode of discharge by agreement, leaving only one contract of employment.

p. 8
03

Whether the change from permanent to fixed term was a unilateral variation

Holding

No unilateral variation; the respondent consulted and sensitised the appellant, who signed and continued in employment, expressly and impliedly accepting the new terms

Reasoning

Section 10(5) of the Employment Act requires consultation before revising a contract. The appellant attended the sensitisation meeting of 13th October 2020, signed the attendance sheet and the contract, and remained in employment. Implied consent from such conduct is sufficient, so no breach or unfair labour practice arose.

p. 9
04

Whether termination was unfair or unlawful

Holding

Employment ended by effluxion of time of the fixed term contract; no notice or reasons were required

Reasoning

The fixed term contract ran from 1st November 2020 to 31st October 2021 and lapsed by effluxion of time. Fixed term contracts carry no expectancy of renewal and self-execute on expiry, so the employer need not justify termination. The claim for compensation was therefore unsustainable.

p. 10
05

Whether the trial court disregarded the appellant's submissions

Holding

The trial magistrate considered the submissions and addressed the same issues; no error was established

Reasoning

The trial magistrate expressly stated that he considered the pleadings and written submissions, and the issues he determined mirrored those in the appellant's submissions. In any event, submissions are not evidence and a trial court's failure to consider them is not fatal where evidence supports the determination.

p. 11

Legal principles established

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  • A fixed term contract ends automatically on expiry of its term; the employer need not justify termination beyond the lapse of the period and carries no obligation of renewal
  • A signature on a contract prima facie denotes acceptance and binds the signatory unless misrepresentation, mistake, duress or undue influence is proved
  • An employee's consent to variation of employment terms may be implied from conduct, such as signing the revised contract and remaining in employment
  • A party alleging duress bears the burden of proving it, and an unpleaded issue cannot found a claim on appeal

Court orders

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  1. 1.The appellant's appeal is dismissed
  2. 2.The trial court's finding on leave is upheld save that the court awards Kshs. 27,300.00 for untaken leave for 2017, 2018 and 2019
  3. 3.Parties shall bear their own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Principal Magistrate's Court (Kisii)
Kisii ELRC No. 009 of 2022
Jurisdiction invoked
First appellate jurisdiction over the ELRC subordinate court (Employment and Labour Relations Court Act); judgment delivered under Article 159(2)(d) and Article 48 of the Constitution via virtual proceedings

Relief refused

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Declaration of unfair termination and compensation of Kshs. 727,131.23

The fixed term contract lapsed by effluxion of time; no unfair or unlawful termination proved

p. 10

Claim for service pay

Appellant was an NSSF member; section 35(6)(d) of the Employment Act bars service pay for NSSF members

p. 11

Salary in lieu of notice

Contract terminated by effluxion of time and no notice was necessary

p. 12

Claims for rest days, public holidays and overtime

No supportive evidence; appellant worked six days a week and admitted no overtime

p. 12

Costs

Parties shall bear their own costs of the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the foregoing is that the appellant's appeal lacks merit and it is accordingly dismissed.
p. 13disposition - dismissal of appeal
Parties shall bear own costs of this appeal.
p. 13costs
The trial court's finding on leave is upheld save for the amount awarded, the court awards Kshs. 27,300.
p. 13leave award varied
Since the contract of employment comes to an end when its defined duration lapses the employer is not required to give reasons for the separation.
p. 10fixed term contracts
Having accepted the new terms and served contract term, the appellant is estopped from raising the issue of duress.
p. 6estoppel by conduct
Alike to the hallowed legal maxim that it is not the business of Courts to rewrite contracts between parties as the said parties were bound by the terms of their contracts, unless coercion, fraud or undue inference are pleaded and proved.
p. 7sanctity of contracts (citing Pius Kimaiyo Langat v Cooperative Bank of Kenya)

Issues in the judgment

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minor

Gender pronouns for the appellant alternate between 'she' and 'he' throughout the judgment

minor

Contradiction on the date of the operative contract: the judgment elsewhere states the contract was dated 1st November 2020

minor

The appeal number of the present matter is not stated; only the trial case number (Kisii ELRC No. 009 of 2022) is given

minor

The word 'DRAFT' appears at the foot of the signed judgment

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, "Kenyanya v Nyangena Hospital Ltd (Appeal E034 of 2024) [2025] KEELRC 1278 (KLR)", Case Analysis (2025). Appeal against Kisii ELRC No. 009 of 2022 (ELRC Appeal, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1278/eng@2025-05-05

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