Mususanji v Volt Management Services Limited

republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment 1.The Claimant was employed by the Respondent on or about 01/09/2021 as a general worker at a basic salary of Kshs. 9,000/- vide a fixed term contract that was to run from 01/09/2021 and to automatically expire on 31/12/2021 by effluxion of time, or on the date the relationship between the respondent and its clients comes to an end. whichever is earlier1. 2.On 30/11/2021, when in the course of his employment, he suffered a grievous workplace injury resulting in the traumatic amputation of his right upper limb at the shoulder level to an approximate stump of less than 20cm from the acromion. The injury was classified as non-fatal occupational accident. 1 Refer to Cause 2.2 of the Fixed Term Employment Contract produced herein as Dexh. No. 1 Page 2 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment 3.Following the said injury, the Respondent orally instructed the Claimant to take indefinite leave since he could not work using only one hand. The respondent however continued to remit the Claimant’s salary through EAZZY-MMONEY platform into his Equity Bank account until the end of July 2022, as evidenced by the Claimant’s statement. 4.On 31/07/2022, without any notice, hearing or explanation, the Respondent ceased remitting the Claimant’s contends that salary. this The Claimant’s cessation or thus stoppage amounts to unfair termination as he never received any warning letter or was not subjected Page 3 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment to any disciplinary proceedings throughout his employment. 5.He is now vide his Statement of Claim dated 06/12/2024, seeking the following reliefs from the Respondent: a.A declaration that the Claimant’s termination was wrongful and unfair. b.A declaration that the Respondent failed to pay the claimant house allowance. c. An order that the Respondent pays the Claimant Kshs. 296, 869.92 as terminal dues made up as follows: i. Kshs. 16, 462.55 being 1-month salary in lieu of notice Page 4 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment ii. Kshs. 74, 625.5 being salary underpayments iii. Kshs. 8, 231.27 being severance pay iv. Kshs. 197, 550.6 being compensation for unfair termination at the rate of 12 months gross salary in terms of section 49 (1) (c) of the Employment Act, laws of Kenya d.A certificate of service under section 51 of the Employment Act e.Cost of this suit and interest on all the amounts herein until payment in full. 6.The Respondent filed an unsigned Statement of Response dated 14/05/2025 where it denied the Claim herein insisting that Page 5 of 25 the fixed term

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment contract of employment herein ended by effluxion of time and/or expired on 31/12/2022. That it continued issuing the Claimant with his salary amount up until 31/07/2022 out of the goodness of their heart and given the fact that the Claimant was their employee during the fixed period described in the fixed term contract, and had unfortunately suffered injury at his designated workplace. That the payments were more of gratitude pay and did not signify that the Claimant was the Respondent’s employee past the fixed term captured in his fixed term contract. It therefore denied constructively dismissing or unlawfully terminating the claimant on 31/07/2022. That the payment of the clamant Page 6 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment was as per the general wages order in effect at the point in time, and that the same was inclusive of house allowance. That it dutifully remitted the Claimant’s NHIF and NSSF contributions, and any arrears arising were duly cleared by the Respondent. That the Claimant’s certificate of service is and has always been ready for collection at its premises. 7.The claimant and the Respondent’s Human Resources manager, Michael Mwanza, were the only witnesses herein. Both relied on their respective witness statements and produced the various documents filed in their respective cases. At the close of hearing there were written Page 7 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment submissions and impressive authorities filed by both parties herein. 8.According to the Claimant, he had a legitimate expectation that his contract had been renewed because the Respondent continued to pay his salary as usual for 7 months till it abruptly stopped. During this period he was on sick-off or leave with the permission, knowledge and authority of the respondent who still deemed him as its employee by continuing to pay his salary. This leave went beyond the term of his contract and despite that the claimant still treated him as its employee by paying him his salaries. The Respondent however denies that the doctrine of legitimate expectation was available to the Page 8 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment Claimant because he was on a fixed-term contract which had lapsed and the Respondents had no obligation to renew it or give reasons for failure to renew. 9.The Court has keenly looked at the Claimant’s contract. The contract provided at the material parts: 2. Contract Period & Probation: … 2.2 Subject to provisions of sub-sections 2.1 and 2.2 hereinabove, this employment contract with effect from 01.09.2021 and will automatically expire on 31.12.2021 by effluxion of time; or on the date the relationship between the Company and its Client comes to an end, whichever is earlier. Page 9 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment 2.3 You will apply for a renewal or extension of this contract prior to or upon its expiry: otherwise, this contract shall stand terminated as at the date the period expires, and all parties released from their obligations herein. 10. The Court of Appeal addressed the question of legitimate expectation within the context of renewal of a contract in Keen Kleeners Limited v Kenya Plantation and Agricultural Workers’ Union (2021) KECA 352. The Court stated therein: In Registered Trustees of the Presbyterian Church of East Africa & Ar v Ruth Gathoni Ngotho- Kariuki [2017] eKLR, where a fixed term contract contained a clause providing for notice of non-renewal 3 months to the end of the contract, this Court rejected the contention that failure to give the notice Page 10 of 25 amounted to an

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment automatic renewal as the conduct of the employer such as removal of the employee from the payroll once the contract expired was a clear indication of the employer’s position. There may, however, be instances where the unique circumstances relationship of may the create employment a legitimate expectation that a fixed term contract would be renewed. In the Oshwal Academy Case (supra), for instance, this Court upheld the trial court’s determination that despite the fixed term contract lapsing by effluxion of time, the respondent had a legitimate expectation of continuity from the conduct of the parties in the course of the employment relationship; and that the respondent was in employment for over 23 years and had developed a bond as to expect to work Page 11 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment until retirement. considerations considering to Regarding be whether made a the when legitimate expectation for renewal of a fixed term contract was created, the sentiments of Rika J. in Teresa Carlo Omondi v Transparency International- Kenya [2017] eKLR are particularly persuasive: “The burden of proof, in legitimate expectation claims, is always on the Employee. It must be shown that the Employer, through regular practice, or through an express promise, leads the Employee to legitimately expect there would be renewal. The expectation becomes legally protected, and ought not to be ignored by the Employer, when managerial prerogative on the subject is exercised. Legitimate expectation is not the same thing as anticipation, desire or hope. It is a principle based on a right, grounded on the larger principles of reasonableness and fair dealing between Employers and Employees. The Employee must demonstrate Page 12 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment some rational and objective reason, for her expectation. The representation underlying the expectation must be clear and unambiguous. The expectation must be induced by the decision maker. The decision maker must have the authority to renew. Repeated renewals, extended service beyond the period provided for in the fixed term contract, and promise of renewal, are some of the elements that would amount to objective reasons underlying expectation of renewal. The presence of these elements however, is not to be taken as conclusive proof of legitimate expectation.” For the sake of comparative jurisprudence, a number of South African cases explore the element of “reasonable expectation” as provided in Section 186 (b) of South Africa’s Labour Relations Act that provides one definition of dismissal as being where an employee reasonably expected the employer to renew a fixedPage 13 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment term contract of employment on the same or similar terms, but the employer offered to renew it on less favorable terms, or did not renew it at all. Some of the factors that are taken into account to determine the presence or absence of this reasonable expectation were, in Dierks v University of South Africa (J399/98) [1998] ZALC 126 para 133, held to include: “...all the surrounding circumstances, the significance or otherwise of the contractual stipulation, agreements, undertakings by the employer, or practice or custom in regard to renewal or re-employment, the availability of the post, the purpose of or reason for concluding the fixed term contract, inconsistent conduct, failure to give reasonable notice, and nature of the employer's business.” In Mediterranean Woollen Mills (Pty) Ltd. v South African Clothing and Textile Workers' Union (143/96) [1998] ZASCA 11, the Supreme Court of Appeal of South Africa Page 14 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment held that despite a clause of a fixed term contract stipulating that no reasonable expectation for renewal of the contract could arise from the contract, a reasonable expectation could arise where assurances made by the employer and other conduct by the employer led the employees that they could entertain such an expectation. In South African Clothing and Textile Workers Union and Another v CADEMA Industries (Pty) Ltd (C 277/05) [2008] ZALC 5, a worker was similarly employed on several fixed term contacts on a continuous and unbroken period of 4 ½ years. The court held that the several renewals or extensions over this period without any discussions as to why they were renewed, in addition to the fact that the last renewal was done after a plea from the worker and the worker was Page 15 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment permitted to another days contract 7 continue after created working expiry a of for the reasonable expectation that the contract would be renewed. 11. In the Court’s view, the conduct of the Respondents not only created a legitimate expectation on the Claimant but also led to an inference that he was still an employee until released formally. This can be seen from the Respondent’s conduct of granting him sick leave which extended beyond the contract’s period. Further, the Respondent’s conduct of continuing to pay him salary beyond the contract’s period led to a legitimate expectation that the Claimant was still its employee beyond the contract’s Page 16 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment period. The argument that the salary payments beyond 31/12/2021 were ex gratia payments appears preposterous or absurd. If they were deemed so, then nothing prevented the Respondent from communicating the same to the Claimant, rather than suddenly stopping the payment. 12. I do find the termination herein to be unfair, illegal and unjustified. Due process had to be followed to terminate the Claimant. I do hereby assess his entitlements as follows: Notice Pay: 13. I find that the contract of employment explicitly proves that the Claimant was employed as a general worker. His pay was therefore within Page 17 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment the minimum wages prescribed for general workers during the period of his employment. I do therefore award him Kshs. 9,000/-, add 15% house allowance of Kshs. 1,350/=, hence Kshs. 10,350. Compensation: 14. Under Section 49(1)(c) of the Employment Act, where termination is found to be unfair, the court may order the employer to pay the employee compensation not exceeding twelve months’ gross salary. In awarding compensation, the court is guided by Section 49(4), which sets out mitigating and aggravating factors including the employee’s length of service, Page 18 of 25 conduct, the

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment circumstances of dismissal, and attempts to mitigate loss. 15. The Claimant had served for 11 months without any warning on record. Considering the short period in which he was in service, and given that he was compensated for the injuries he sustained while in employment, I find that an award of 1 month’s gross salary is addressing the appropriate. Severance Pay 16. The Court of Appeal, in payment of gratuity to an employee in the case of Alsaidco Alarm Limited v Njeru [2023] KECA 1127 (KLR), determined that where there is evidence that the employer Page 19 of 25 has paid

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment contributions under social security, such as to NSSF, directing the employer to pay severance pay would violate the principle against double compensation. Since the Respondent was paying NSSF dues for the claimant's benefit, he was not entitled to pursue severance pay. This position is reiterated in the case of Muchiri v Security Guards Services Limited [2024] KEELRC 1807 (KLR). Since the NSSF Statement produced by the claimant as Cexh. No. 5 proves that the Respondent was registered with National Social Security Fund and the Claimant was actively subscribed to the said Fund, I find that the Claimant is ineligible for service pay under Section 35(6)(d) of the Employment Act. Page 20 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment Underpayments 17. As already found hereinabove, the claimant was employed as a general worker and there is therefore no underpayments on account that the claimant was a machine operator. The claim herein is therefore not awardable. CONCLUSION AND FINAL ORDERS 18. In the end judgment is hereby entered for the Claimant against the Respondent as follows: a.A declaration is hereby made that the Claimant’s termination was wrongful and unfair. Page 21 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment b.A declaration is hereby made that the Respondent failed to pay the Claimant house allowance. c. An order is hereby made that the Respondent pays the Claimant Kshs. 20, 700/= made up as follows: i. Kshs. 10,350/- being 1-month salary in lieu of notice. ii. Kshs. 10,350/- being compensation for unfair termination at the rate of 1-month gross salary in terms of section 49(1) (c) of the Employment Act. d. The Claimant to collect his Certificate of Service from the Respondent. Page 22 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment e.Cost of this suit and interest on the amount hereinabove until payment in full. 19. I mentioned above that the Statement of Response was not signed. The legal position is that any unsigned document are invalid. However since the Claimant did not raise the issue and went ahead to prosecute the claim with the unsigned Statement of Defence herein in mind, and as held by Justice M. Onyango in Alexander Mutinda Peter & another v Registrar of Trade Unions & 4 others [2013] KEELRC 247 (KLR), I will make no orders in respect thereof. Orders accordingly. Page 23 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment Read in open Court, Virtually this of September 15th day 2026 ALOYCE-PETER-NDEGE SENIOR PRINCIPAL MAGISTRATE In the presence of: Magatta for Claimant Ondego for Respondent Ondego: Praying for 30 days stay to enable the Respondent factor in the award in the next monthly financial obligations Magatta: No objection Page 24 of 25

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakurumcelrcnoe369of2024apndegespmkelvinmachikamu susanjiclaimantversusvoltmanagementserviceslimitedrespondentjudgment CT: 30 days stay granted. Page 25 of 25

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