Shedrack Philip Kanyiri & 7 others v ME Corporation Limited [2019] KEELRC 1819 (KLR)

d. House allowance for 25 months………………………………....63,889 e. Underpayment for 25 months………………………....……......111,812 2nd Claimant: Muli Nzivo a. 2 months’ pay in lieu of notice…………………………....Kshs. 27,212 b. Leave pay for 2 years………………………………………........21,979 c. Gratuity for 4 years…………………………………………...…31,398 d. House allowance for 33 months………………………………....58,565 e. Underpayment for 33 months………………………………........43,930 3rd Claimant: Mohamed Nassiri Kibwana a. 2 months’ pay in lieu of notice…………………………....Kshs. 27,212 b. Leave pay for 2 years……………………………………....……21,971 c. Gratuity for 13 years……………………………………......….102,044 d. House allowance for 33 months………………………...............58,565 e. Underpayment for 26 months…………………………...............34,611 4th Claimant: Mwalimu Omari Kukumo a. 2 months’ pay in lieu of notice……………………...........Kshs. 27,212 b. Leave pay for 2 years……………………………………...........21,971 c. Gratuity for 15 years……………………………………............31,398 d. House allowance for 33 months…………………………..........58,565 e. Underpayment for 33 months…………………………..............43,390 5th Claimant: Rashid Matano Mwamfunga a. 2 months’ pay in lieu of notice………………………......Kshs. 25,194 b. Leave pay for 2 years………………………………….….........20,349 c. Gratuity for 9 years…………………………………….............65,543 d. House allowance for 33 months……………………….…........54,222 e. Underpayment for 33 months………………………...............147,304 6th Claimant: Willamson Newton Mwendamboa a. 2 months’ pay in lieu of notice…………………….....…Kshs. 25,194 b. Leave pay for 2 years…………………………………….........20,349 c. Gratuity for 7 years……………………………………............50,978 d. House allowance for 26 months……………………….............42,721 7th Claimant: Juma Juma Mriwa

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a. 2 months’ pay in lieu of notice…………………........…Kshs. 25,194 b. Leave pay for 2 years………………………........................…20,349 c. Gratuity for 16 years………………………………...............116,520 d. House allowance for 26 months……………………...............42,721 e. Underpayment for 26 months……………………….........…115,805 8thClaimant: Peter Mwilu Mbindyo a. 2 months’ pay in lieu of notice……………………..…Kshs. 25,194 b. Leave pay for 2 years……………………………......………20,349 c. Gratuity for 8 years………………………………..............…58,260 d. House allowance for 26 months…………........................…..42,721 e. Underpayment for 26 months……………………........……115,805 5. The Claimants also ask for certificates of service plus costs of the case. The Respondent’s Case 6. In its Memorandum of Response dated 28th June 2017 and filed in court on 29th June 2017, the Respondent states that the Claimants were employed on fixed term contracts with their respective last contracts running for 5 months from 1 st February 2016 up to June 2016. The Respondent adds that upon expiry, the said contracts were not renewed. 7. The Claimants’ employment therefore came to an end by effluxion of time at which point their terminal dues were tabulated and paid. The Claimants duly acknowledged receipt of their dues and confirmed that they had no pending claims against the Respondent. Findings and Determination 8. The Claimants plead that their employment was terminated after they declined to sign new contracts whose effect was to deconsolidate their salaries. 9. However, the 1st Claimant, Shedrack Philip Kanyiri, testifying on his own behalf and on behalf of his co-claimants told the Court that they were all employed on 6 months’ fixed term contracts, with the last contracts ending on 31 st May 2016. The question then is whether the Claimants are entitled to lay a claim for unfair termination in light of this fact. 10. It is now firmly settled that fixed term contracts carry no automatic expectation for renewal. The only exception to this general rule is where the employee has a demonstrable legitimate expectation that the contract will be renewed. 11. Legitimate expectation may be construed from an express provision in the contract that the employee will be notified of the employer’s intention not to renew or where by conduct, the employer allows the employee to continue working after the expiry date. The onus of proving circumstances leading to such expectation is on the employee (see Margaret A. Ochieng v National Water Conservation & Pipeline Corporation [2014] eKLR and Teresa Carlo Omondi v Transparency International Kenya [2017] eKLR). 12. In support of its case, the Respondent produced fixed term contracts issued to the Claimants on 1 st December 2015. All the contracts were to run up to 31 st May 2016 which was pleaded by the Claimants as the termination date. The Claimants were clearly on fixed term contracts and the Court did not find evidence of any circumstances that would create a legitimate expectation for renewal. 13. The claims for compensation for unfair termination of employment and notice pay are therefore without basis and are disallowed. From the evidence on record, the Claimants were paid in lieu of their pending leave days alongside their final dues. The claim for leave pay is therefore dismissed. 14. Regarding the claim for house allowance I have this to say; the Claimants’ employment contracts provided for monthly gross salaries, which would ordinarily include house allowance. In fact, the Claimants themselves told the Court that they were unhappy with an attempt by the Respondent to deconsolidate their salaries. The claim for house allowance therefore fails and is dismissed. 15. No basis was laid for the claim for gratuity and the claim for underpayment was not proved. 16. In the end, the Claimants’ entire claim fails and is dismissed.

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17. Each party will bear their own costs. 18. It is so ordered. DATED SIGNED AND DELIVERED AT MOMBASA THIS 9TH DAY OF APRIL 2019 LINNET NDOLO JUDGE Appearance: Mr. Anaya for the Claimants Miss Opolo for the Respondent

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