Ongubo v Nyangena Hospital Ltd (Appeal E029 of 2024) [2025] KEELRC 1279 (KLR)
The bottom line
#Kenya's Employment Court confirmed that when a fixed term contract expires, its non-renewal is not unfair termination, and employees must prove claims like overtime with specifics.
What this practically means
#Executive summary
#Key legal issues
#Existence of two separate and concurrent contracts of employment
The issue was not pleaded or submitted on before the trial court and could not be raised for the first time on appeal; in any event the earlier contract merged into the new written contract
The court held parties are bound by their pleadings, citing the Court of Appeal in IEBC v Mutinda Mule and authorities. Evidence showed the appellant signed a written contract effective 1st November 2020 to 31st October 2021. Upon the new agreement, the earlier oral contract's terms were merged and discharged, leaving only one contract of employment between the parties.
Alleged coercion in signing the fixed term contract
Coercion was not proved; the appellant failed to plead or particularise it, produced no evidence, raised it late, and took no steps to avoid the contract
The court found the allegation arose only in cross-examination and was absent from the claim and witness statement. Citing Barton v Armstrong and Occidental Worldwide, it held the party alleging duress bears the onus to show coercion exerted by the other party. A threat not to pay salary is not duress. The appellant also acquiesced by serving the full term, invoking estoppel by conduct.
Non-renewal of the fixed term contract as unfair termination
Non-renewal of a fixed term contract on effluxion of time does not amount to unfair termination; the employer owes no notice unless the contract so provides
Relying on Registered Trustees PCEA v Ruth Gathoni Ngotho and related Court of Appeal decisions, the court held the contract ran for one year and was non-renewable. The respondent gave a non-renewal notice dated 1st October 2021 and had not intimated renewal was forthcoming, so no reasonable expectation arose and no declaration of unfair termination could issue.
Alleged disregard of the appellant's submissions by the trial court
Submissions are neither pleadings nor evidence; the trial magistrate considered the submissions and no error was demonstrated
The court found the appellant had not particularised what the trial court ignored, noting the magistrate expressly stated he considered the pleadings and written submissions. Citing Daniel Toroitich arap Moi v Mwangi Stephen Mureithi, submissions are parties' 'marketing language' and do not constitute evidence at all.
Legal principles established
#- A first appellate court must reconsider and re-evaluate the evidence and arrive at its own conclusions, mindful it neither saw nor heard the witnesses
- Parties are bound by their pleadings and evidence at variance with the pleadings must be disregarded
- Coercion or duress must be pleaded with clarity and established with precision by the party alleging it
- A fixed term contract expires on the agreed term and there is no obligation on the employer to renew unless the contract or the employer's conduct creates such an obligation or expectation
- A threat not to pay salary does not constitute duress as it is neither a crime nor a tort and the employee has an adequate legal remedy
- When parties enter a new contract of employment, the terms of the earlier contract are merged with the new contract, discharging the earlier one
- In the absence of fraud or misrepresentation, a party who signs a contractual document is bound by it whether or not they read it
- Submissions are neither pleadings nor evidence and cannot take the place of evidence
Court orders
#- 1.The appeal is dismissed
- 2.Parties shall bear their own costs of the appeal
- On appeal from
- Chief Magistrate's Court at Kisii (ELRC)
- Kisii MC ELRC No. E012 of 2022
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over the subordinate court's judgment (Memorandum of Appeal from Kisii MC ELRC No. E012 of 2022)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ongubo v Nyangena Hospital Ltd (Appeal E029 of 2024) [2025] KEELRC 1279 (KLR)", Case Analysis (2025). Kisii MC ELRC No. E012 of 2022 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1279/eng@2025-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.